Charity trustee not entitled to whistleblowing protection under employment legislation

Background

In the case of MacLennan v British Psychological Society, an employment tribunal considered whether a charity trustee could rely on the whistleblowing protections in the Employment Rights Act 1996.

The legislation protects workers from suffering detriment for making protected disclosures about wrongdoing. Protection is generally limited to employees and other individuals working under a contract to perform work personally.

The claimant had been elected president-elect of the British Psychological Society (BPS). The BPS's Royal Charter, Statute, and Rules establish a board of trustees and a presidential team comprising the president-elect, president, and vice president. The president-elect is elected annually and typically progresses to president after one year, serving a one-year term before transitioning to vice president for another year. Shortly after beginning his role as president-elect, he alleged he had made a number of protected disclosures. Relations subsequently deteriorated and he was expelled from membership of the organisation, which brought his role as trustee and president-elect to an end.

He brought a claim alleging that he had suffered detriment because of whistleblowing.

The tribunal initially held that it did not have jurisdiction to hear his claim because he was not a "worker. The Employment Appeal Tribunal later allowed an appeal, holding that the tribunal should reconsider whether he met the definition of a "worker" when assessing his role in light of protections under the European Convention on Human Rights which requires courts and tribunals to interpret the law as widely as possible to ensure compliance.. The case was therefore remitted to the tribunal.

Tribunal decision

On remission, the tribunal again concluded that the claimant was not entitled to whistleblowing protection.

It accepted that trustees might become aware of wrongdoing and that it could be in the public interest for them to report concerns. However, the tribunal found that the role of a charity trustee was fundamentally different from that of an employee or worker.

Trustees act in a governance and oversight capacity, rather than performing work for the charity under a contractual arrangement. They are typically unpaid volunteers and are not subordinate to the organisation in the way that employees or workers are.

The tribunal also considered the level of vulnerability to retaliation. In the employment context, a whistleblower may face dismissal or loss of livelihood, which the legislation is designed to prevent. By contrast, trustees do not face the same level of personal or financial risk.

Another important factor was the existence of alternative routes for raising concerns. Charity trustees can report wrongdoing directly to the Charity Commission, which has statutory powers to investigate and take action.

The tribunal accepted that being a charity trustee could amount to an “other status” for the purposes of human rights law, meaning that the difference in treatment between trustees and workers required justification. However, it concluded that the distinction was justified.

In particular, the tribunal considered that allowing trustees to bring whistleblowing claims against their charity could create conflicts of interest and expose charitable funds to litigation costs. Limiting statutory protection to those who are “in work” was therefore a proportionate approach.

The tribunal also found that a high degree of respect must be given to the primary legislation and Parliament's intention in creating it. The government intervened to argue that it was not Parliament's intention to extend whistleblower protection to charity trustees.

Learning points for employers

While this a first instance decision, and therefore not binding on other tribunals, it suggests that as the law currently stands, charity trustees are unlikely to benefit from statutory whistleblowing protection because they do not fall within the definition of a worker.

However, the case also illustrates how human rights arguments may be used to attempt to extend employment protections beyond traditional working relationships. Employers and organisations that rely on volunteers, trustees or other office holders should therefore be aware that the boundaries of whistleblowing protection may continue to be tested in future litigation.

For charities in particular, the case highlights the importance of having clear internal governance processes for raising concerns and ensuring that trustees understand the external reporting routes available to them, including engagement with the Charity Commission.

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For support or advice, please get in touch with Jo Oliver in our Employment team.