We reported back in November 2024 about Dr MacLennan, a trustee of the British Psychological society. The EAT upheld his complaint that he should be protected as a whistleblower, even though he was neither an employee nor a worker and so did not come under the protection of our whistleblowing legislation.

In many ways, the decision made sense; we want trustees to feel able to speak out about behaviours or practices within their charity without fear of reprisal. The EAT remitted the case back to the original tribunal for further consideration. They concluded once more that Dr MacLennan was not entitled to whistleblower protection under the ERA 1996 based on his status as a trustee. 

The reasons given were as follows.

• He received no remuneration for his role and whilst that was not determinative, it was an important distinction between the role of a worker or employee.  In addition, he was not ‘subordinate’ to the charity – his was a role of oversight and governance, which was clearly different to that of a worker or employee.
• He did not need the protection afforded to an employee or worker.  Dismissal would not have the monetary ramifications for him that it would have to employees, although there is an argument to suggest it could affect his reputation and so his ability to take future trustee roles. The tribunal’s argument was that this still would not cause him monetary damage.
• As a trustee, he could raise concerns directly with the Charity Commission as they have a duty to investigate and act on any wrongdoings by a charity.  Whistleblowing was not his only option, per se. 

The other issue which we addressed in our blog was the argument that Dr MacLennan was protected under Article 14 of the ECHR.  This prevents discrimination based on ‘some other status’.  The tribunal agreed that the status of charity trustees did amount to ‘other status’. Therefore, was the discrimination – treating employees and workers differently from trustees in terms of whistleblowing rights – justifiable?

The tribunal found that, indeed, there was reasonable justification for this different treatment. 

• Avoiding conflicts of interest that may arise where a charity trustee brings claims against their charity was a proportionate aim. Excluding trustees from bringing such claims furthered that aim but did not leave trustees with nowhere to go. The Charity Commission was the appropriate body for trustees to raise their claims.
• The whistleblowing provisions of the ERA 1996 are expressly limited to employees and workers. Previous case law has made it clear that the provisions are to protect those individuals who are ‘in work’. That demarcation, the tribunal concluded, must be held. 

What does this mean for your trustees?

If they are not being paid or remunerated in any way, then it’s likely that this decision will apply and your trustees will not have any protection under whistleblowing protections.

However, it’s important that trustees feel able to act with integrity and report issues which they consider to be in the public interest or detrimental to the charity. With that in mind, you should ensure that in their trustee pack/training, they are informed of the role of the Charity Commission and the role it plays in supporting trustees and ensuring charities are run transparently and in accordance with their aims.

It’s also worth linking back to our previous blog on volunteer status here. One of the key factors in this case which differentiated it from other cases, was the fact that Dr MacLennan was clearly a volunteer trustee and receiving no remuneration.  As we noted in that blog, it’s important if your trustees are to remain volunteers that you are careful to avoid any payment to them (whether that be in money or 'gifts') over and above reasonable expenses

If, as a charity, you feel that one of your trustees is behaving in a way that is inappropriate, you will need to consider the appropriate course of action.  There might be a mechanism in the charity’s governing document to assist with this, you might have a complaints policy that applies to trustees and you might need to consider requesting they step down from their role. If they are volunteers and not workers, they will have no employment rights. 

Where inappropriate behaviours are reported, an investigation might be required to check whether the concerns are substantiated.  That said, the ACAS code on disciplinary and grievance procedures does not apply and so it is up to the charity as to how formalised this process will be. 

This decision is still only a tribunal decision and so is not binding on future decisions.  It is possible that a future tribunal will come to a different conclusion and approach the balancing of the ECHR rights differently.  The whistleblowing charity Prevent appears keen that volunteers such as Dr MacLennan are protected; however, the Charity Commission and the Government appear to have raised concerns with extending the protection too far. All three intervened in this case on opposing sides, so we imagine that future cases will be dependent on their specific facts. 

What does this mean for non-executive directors/office holders who receive a payment to perform their services? 

For these situations, the case of Gilham v Ministry of Justice [SC] 2019 may be more relevant than Dr MacLennan’s case.  This case was referred to in Dr MacLennan’s case, as Ms Gilham is a district judge and was found by the Supreme Court to be protected under whistleblowing legislation.  In this case, the Court found that to prevent judges from the protection offered under the Employment Rights Act 1996 to whistleblowers was an infringement of their right under the European Convention of Human Rights to freedom of expression on grounds of their occupational status – Article 14 prohibits discrimination on the grounds of ‘some other status’ and this can include occupational status.   The Supreme Court then applied the Human Rights Act 1998, which requires legislation to be interpreted to give effect to ECHR rights and concluded that the ERA 1996 should be read to extend whistleblowing protections to holders of judicial offices.

In Dr Maclennan’s case, the tribunal held that this argument was not relevant to charity trustees. Their status, the tribunal argued, is defined by statute and hence does not count as occupational status in the same way as judges. Whilst there was discrimination on the grounds of status more generally, as we have seen above, this could be justified.  However, non-executive directors as office holders may be able to rely more successfully on the occupational status argument that proved successful for Ms Gilham. 

What are the implications?

For housing providers (or any charity or social business with non-executive directors), it is worth considering what, if any, terms or agreement you have with them concerning how they raise important issues of public interest.  As an organisation, you want to know that your non-executive directors feel able to raise issues which they see, with the benefit of an ‘outsider looking in’.  If they are charity trustees as well, do you highlight the role of the Charity Commission or do you signpost them to the ombudsman? In the absence of these terms in the agreement, we would advise providers to consider which information to include. Social housing providers, which are often community benefit societies and exempt charities, are regulated by the Regulator of Social Housing. Non-executive directors may escalate concerns to the Regulator of Social Housing where the board or executive has failed to address material risks, there is a potential breach of consumer or economic standards, there is serious detriment to tenants, safety issues, or governance failure; there is evidence of misconduct, mismanagement, or regulatory non‑compliance.

Do you have a complaints procedure for your non-executive directors? We would advise that an agreed process for investigating issues is a beneficial framework -   beneficial for the individual going through it to express their concerns and give reasons for their behaviours and beneficial for the organisation to potentially learn about issues, processes and behaviours which need addressing before matters escalate

If you would like any help drafting a suitable board complaints policy or looking at the terms on which your non-executive directors are appointed, please contact us.