Employment Tribunal finds charity trustees are not entitled to whistleblower protections

How whistleblowing protection works

Under the ERA, individuals who make a “protected disclosure” about wrongdoing may be protected from detriment or dismissal. This is commonly referred to as whistleblowing.

In broad terms, protection arises where worker reports information about wrongdoing which they reasonably believe is true and in the public interest. If they are then treated unfavourably because they raised the concern, they may bring a claim in the Employment Tribunal.

These protections are intended to encourage individuals to raise concerns about misconduct or serious wrongdoing, supporting transparency and accountability within organisations without fear of retaliation. However, the protection is not universal. It depends on the individual falling within the statutory definition of a protected person, and the scope of that protection is still being tested in some contexts. The recent tribunal decision discussed below explores whether charity trustees fall within that framework.

The dispute in this case

In the case of MacLennan v British Psychological Society, the claimant was a trustee and president-elect of the British Psychological Society (BPS). Shortly after taking office, the claimant alleged he made protected disclosures. Relations broke down, leading to his expulsion as a member of BPS. He subsequently claimed that this amounted to a detriment due to whistleblowing.

The case turned on whether a trustee could be considered a 'worker' for the purposes of whistleblowing protection under the ERA.

The tribunal dismissed his claim, ruling he was not a 'worker', as being a trustee was a voluntary role and he had no contract with the BPS. It also rejected an asserted broader interpretation of 'worker' under the European Convention on Human Rights (ECHR), finding his role as a trustee was not analogous to that of a worker. It considered the absence of remuneration a determinative factor.

On appeal, the Employment Appeal Tribunal (EAT) agreed there was no contractual relationship between the claimant and BPS but found the tribunal had not fully considered his ECHR rights, namely that it had not applied the necessary' broad-brush' approach to decide if his role was analogous to that of a worker. The EAT identified factors the tribunal should have assessed and remitted the case for reconsideration.

Tribunal's decision

Applying the approach set out by the EAT, the Tribunal considered whether a charity trustee is in an analogous position to a worker for the purposes of whistleblowing protection.

The Tribunal accepted that charity trustees may become aware of wrongdoing and that it is important that concerns are raised in the public interest. However, it concluded that trustees are not in an analogous position to employees or workers. In reaching that conclusion, the Tribunal placed particular weight on the nature of the trustee role. Trustees are generally volunteers, are not paid for their services and are not subordinate to the charity in the way an employee or worker is subordinate to their employer. The Tribunal considered that trustees instead occupy a governance and oversight role rather than being “in work” for the charity.

The Tribunal also considered the extent to which trustees are vulnerable to retaliation for raising concerns. It concluded that the potential consequences of losing a trustee role were materially different from the loss of employment faced by workers or employees in terms of the impact on their livelihood. The Tribunal also noted that trustees have alternative routes for raising concerns, including reporting matters directly to the Charity Commission, which has statutory powers to investigate misconduct and mismanagement within charities.

Although the Tribunal found that charity trustees were not in a position analogous to workers, it accepted that being a charity trustee could constitute an “other status” for the purposes of Article 14 of the ECHR. This meant that trustees were treated differently from workers under the statutory whistleblowing framework. The Tribunal therefore went on to consider whether that difference in treatment could be justified.

The Tribunal concluded that the exclusion of charity trustees from whistleblowing protection was justified. In particular, it accepted that extending such protection could give rise to conflicts of interest, as trustees bringing claims could ultimately be seeking compensation from the funds of the charity they are responsible for overseeing. The Tribunal also accepted that Parliament had deliberately framed whistleblowing legislation to protect those “in work”, and that courts should afford a significant degree of respect to that legislative choice.

Taking these factors together, the Tribunal found that the differential treatment between workers and charity trustees pursued a legitimate aim and was proportionate. As a result, the claimant was not entitled to rely on whistleblowing protection under the ERA.

Learning points for charities

This is a first instance decision of the Employment Tribunal and is therefore not binding on other tribunals. However, it provides helpful guidance on how the current whistleblowing framework is likely to apply to charity trustees.

The decision confirms that whistleblowing protections under the ERA are directed at individuals who are “in work”, such as employees and workers. Charity trustees, who typically act as unpaid volunteers with governance responsibilities rather than in a subordinate working relationship, will not usually fall within that framework.

For charities, the case is a useful reminder that concerns raised by trustees are likely to sit within the sector’s existing regulatory framework rather than employment law. Trustees who identify potential wrongdoing can raise concerns internally or report matters to the Charity Commission, which has statutory powers to investigate.

Although this decision may provide some reassurance that trustees cannot generally pursue whistleblowing claims, charities should still take concerns raised by trustees seriously and ensure that there are clear and effective routes for issues to be reported and addressed. Maintaining a culture in which concerns can be raised openly remains an important part of good governance.

As the decision is at first instance, the position could still develop if further cases reach the appellate courts or if Parliament revisits the scope of whistleblowing protection in the future.

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For more information please contact Jo Oliver in our Employment team.