In a landmark decision handed down on 21 October 2024 by the Employment Appeal Tribunal (EAT), the door has been opened for UK charity trustees to receive protection from adverse treatment for making whistleblowing disclosures to a charity or to another relevant party.  Until now, protection had not been available, due to the particular circumstances in which trustees work, often unpaid and without a contract.

In the case of Dr Nigel MacLennan v The British Psychological Society, the EATs decision directly opens up potential protection to the approximately one million trustees in the UK.

The case

The British Psychological Society is a registered charity incorporated by Royal Charter, responsible for the development, promotion and application of psychology. It is the representative body for psychologists in the UK. The respondent has approximately 60,000 members. The claimant Dr Nigel MacLennan, a psychologist, was a charity trustee elected to the role of President-Elect of the charity.

Dr MacLennan is reported to have had concerns about the manner in which the Society was run. In 2020, MacLennan campaigned to be elected as President-Elect with the aim of addressing these concerns. He was told that he had been elected on 4 May 2020 and contended that he made four protected disclosures between 3 June 2020 and 19 June 2020.  The claimant took up the role of President-Elect on 30 June 2020 and said he made a further nine protected disclosures between 1 July 2020 and 17 December 2020. An independent investigation was conducted by a barrister. On 4 May 2021, the claimant was expelled from membership of the respondent, which terminated his role as a Trustee and President-Elect.

Dr MacLennan contended that he was, or should be treated as, a worker, so as to be protected against being subject to detriment by the charity done on the grounds of making whistleblowing disclosures.

The tribunal judgment

The Employment Tribunal held in 2023 that the claimant was not at any time a worker of the respondent, as a result of which the Employment Tribunal decided it had no jurisdiction to hear his complaints of detriment for making protected disclosures. The Employment Tribunal held it was not therefore within the scope of the judgment to determine whether the claimant’s expulsion from the respondent’s membership was fair. The claimant was essentially left unprotected.

The appeal

The claimant appealed and argued he was a worker or should be treated as a worker for relevant purposes under his ECHR rights, including to freedom of expression.

At the appeal stage, Protect (the leading whistleblowing charity in the UK) intervened on behalf of the claimant. It emphasised the obvious public importance of whistleblowing. Keystone Law employment partner Paul Daniels was instructed by Protect to advise on the case.

The EAT decision

In the judgment published 21 October 2024, the Judge has upheld the claimant’s appeal and sent the case back to the Tribunal to consider the matter further. In essence, the Judge found that the rights the trustee as an officer holder and under the ECHR to freedom of expression were not compatible with him being denied any whistleblowing protection in the UK. Judge James Tayler from the EAT concluded:

“I consider that the Employment Tribunal did not adequately consider the relevant circumstances and conduct the broad-brush assessment necessary to decide whether there was an “analogous situation” between the claimant and employees or limb B workers and whether being a charity trustee, President-Elect and/or President is an “other status”.

The Judge added:

The Employment Tribunal appears to have focused almost entirely on lack of remuneration and the linked fact that the claimant was a volunteer. These were relevant factors, but not determinative… In considering whether there were analogous circumstances with employees and limb B workers, the relevant factors would be likely also to include: 

the type of role undertaken and level of responsibility, the duties of the role, the likelihood that the person will become aware of wrongdoing, the importance of the person making disclosures of wrongdoing in the public interest, the vulnerability of the person to retaliation for making a protected disclosure – including the extent to which livelihood or reputation might be at risk 104.6., the availability of alternative routes to making disclosures of wrongdoing and any alternative protections and any other relevant distinction between the office holder and an employee and/or limb B worker.

Legal implications   

Paul Daniels, employment partner at Keystone Law, commented:

“In the crucial part of the judgment, the Judge found that there was a strong argument that being a charity trustee, President-Elect and/or President is akin to an occupational status (which would be likely to unlock the door to protection).

“The Judge also commented that the nature of the role, responsibilities and regulatory regime to charity trustees is strongly suggestive of such a status.

“Although there are other legal issues to factor in before protection is formally granted, this is a strong indication that many UK trustees will be protected going forward.

“It was also usefully held by the EAT that a worker is protected from being subject to a detriment by his current employer for making a protected disclosure to that employer prior to the commencement of the employment. This will extend UK whistleblowing laws more widely.”

The wider impact of the case

Elizabeth Gardiner, Chief Executive of the UK’s whistleblowing charity Protect, says:

“We welcome this judgment as a victory for common sense that has the potential to protect and empower a million charity trustees across the UK. 

Whistleblowing is a key instrument of good governance, but all too often it comes with a high cost for those who blow the whistle. Confronting senior executives and standing up against the pack is fraught with dangers and organisations can often become hostile to those challenging their decisions. In many cases it’s the whistleblower who faces the heat rather than those behind the wrongdoing.

As influential and critical members of a charity, trustees are essential in detecting and deterring wrongdoing such as fraud, safeguarding issues and mismanagement. This ruling should mean that many more trustees will have the confidence and legal protection to call out wrongdoing when they see it. 

However, it is grossly unfair to expect individual whistleblowers to bring cases through the courts system, with all the stress and cost that falls on them, in order to make these sensible changes to the law.  This judgment needs to be the spur to make the Government act.  Our legislation should be updated so that trustees – along with the many more thousands of people who currently sit outside the parameters of whistleblowing law, including self-employed contractors, job applicants and many others– get the protections they need and deserve.”

Advising Protect alongside Paul Daniels were barristers Jeremy Lewis KC and Mukhtiar Singh.

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