The law places considerable responsibility on charity trustees running charitable organisations with integrity and honesty and yet there appears to be little protection for them if they were to raise concerns about unethical or criminal (or both) practices. As neither workers nor employees, they do not meet the current statutory requirement for protection under UK legislation for whistle-blowing. However, a recent case in the Employment Appeal Tribunal seems to be moving in some way to address this balance. 

Headline – Charity trustees may be protected by whistle-blowing legislation

Current legislation states that workers are protected from dismissal or detriment if they raise a concern within the statutory definition of a protected disclosure. Office holders are not treated as workers if they were to make a protected disclosure.

However, the courts are starting to draw different conclusions. In 2019, the Supreme Court (Gilham v Ministry of Justice) ruled that a district judge (whilst not a worker) was entitled to whistle-blower protection. For various reasons beyond the scope of this blog, the court found that denying judges the right to whistle-blower protection was an infringement of their rights under the European Convention on Human Rights (ECHR) as it discriminated against them based on their occupational status.

This case has important implications for other office holders and other categories of volunteers, including trustees. The Supreme Court outlined four questions to be applied in future cases to assess whether ECHR rights had been infringed by denying individuals whistle-blowing:

1. Do the facts of the case fall within the ECHR rights? 
2. Has the claimant been treated less favourably than others in an analogous situation? 
3. Is the reason for less favourable treatment because of the individual’s status? 
4. Is there reasonable justification for the less favourable treatment?  

This case had clear implications for future cases involving charity trustees, hence this latest decision. 

MacLennan v British Psychological Society (BPS)

Dr MacLennan was a BPS member for many years. He was concerned about how it was being run and campaigned to be president to address these concerns. He was elected as president-elect in May 2020, taking up his post in June 2020. He made four protected disclosures in June 2020 and nine more between July and December 2020. The relationship between Dr MacLennan and the BPS deteriorated during this time and following an investigation, he was expelled from membership in May 2021. His role as trustee and president-elect was terminated. He brought a complaint to an employment tribunal, arguing that his expulsion amounted to a detriment, presumably due to the reputational damage he suffered.

The tribunal ruled that they could not hear his complaint as he was not a worker. Dr MacLennan appealed to the Employment Appeal Tribunal. 

EAT Decision

The EAT agreed with the tribunal’s conclusion that there was no express or implied employment contract between BPS and Dr MacLennan. 

However, the EAT concluded that the tribunal failed to properly assess whether Dr MacLennan was protected under his ECHR rights. They had failed to apply the questions outlined in the Gilham judgment as to whether Dr MacLennan’s ECHR rights had been infringed. In answering the second question of whether Dr MacLennan’s role was analogous or comparable with other employees or workers, the tribunal had focused on the fact that Dr MacLennan was not paid. They concluded that his voluntary role as a trustee was not comparable/analogous with the charity’s employees and workers protected under the whistle-blowing legislation. 

The EAT said that this was the wrong approach; in considering whether Dr MacLennan’s circumstances were similar or analogous to the charity’s employees, the tribunal should have applied a ‘broad brush’ approach and considered all the relevant circumstances and not just remuneration. 

Other factors that should have been considered include:

• the nature of the trustees/office holder’s role; the responsibilities they hold; 
• the duties of the role; 
• the likelihood that the person would become aware of wrongdoings;
• the importance of that person disclosing those wrongdoings; 
• the vulnerability of that person if they were to make such a disclosure; 
• the availability of alternative routes to making the disclosure; and 
• any other distinction between the trustee/office holder and the workers. 

The EAT concluded that applying this ‘broad brush’ approach to whether the trustee’s role was analogous to paid staff created a strong argument that it was and consequently, the trustees should be given whistle-blowing protection. The EAT sent the case back to the tribunal to consider the factors again.

Where does that leave us?

• Whistle-blowing protection may be afforded to trustees or office holders under their rights under the ERHR rather than their status under the Employment Rights Act 1996.
• The key question is whether the role of the trustee or office holder is analogous to paid employees. We know from the EAT’s ruling that a trustee being unpaid is not determinative and the approach the courts should take is ‘broad brush’. Given that all trustees should show a high level of commitment to their charity to satisfy their fiduciary duties and responsibilities placed on them, they must raise wrongdoings. There is a strong argument to suggest that their role is analogous to applying the EAT’s criteria in a generalist, broad-brush approach. 
• This case further highlights the shortcomings of our current whistle-blowing protection legislation and will strengthen the calls for reform and the argument that the current protection regime is not fit for purpose.   
• Even if the tribunal reconsiders and concludes that Dr MacLennan is not protected as a whistle-blower on the facts of his case, we would expect to see the courts continue to extend the boundaries of who is protected beyond workers and employees, as defined by the Employment Rights Act 1996, given the Gilman case. With that in mind, we would advise charities to consider their whistleblowing policy and procedure and whether they wish to consider extending the policy and its protections to their trustees.

We will update this blog when we have further information on this case and the tribunal’s decision.

For more information

If you would like any further help on this case, or for advice on your whistleblowing policy and procedure, please contact Esther Campsall or our employment team.