A recent decision of the Employment Appeal Tribunal (EAT) appears to have expanded whistleblowing protections to include charity trustees. The decision and broader interpretation of whistleblowing protections could have significant implications for charities and their governance.
The law protects employees from unfair dismissal for blowing the whistle (making protected disclosures) and workers from detrimental treatment for blowing the whistle.
The Supreme Court has previously held that a district judge, who was not a worker under the definition in the whistleblowing legislation was nevertheless entitled to legal protection as an office holder.
The EAT has taken this one step further in the case of MacLennan v British Psychological Society. Although the charity trustee in question was not paid and was clearly a volunteer there were other factors of relevance that had to be taken into account when assessing the scope of whistleblower protection. Not least of these was the fact that charity trustees have a statutory obligation under the Charities Act 2011 to act in the charity's best interests and ensure its accountability; they are therefore obliged to disclose wrongdoing.
The MacLennan v British Psychological Society case
In MacLennan v British Psychological Society, Mc MacLennan, a trustee and president-elect of the British Psychological Society (BPS), raised concerns about the organisation's management. His role was terminated, and he filed a whistleblowing detrimental treatment claim on the basis that he had made a protected disclosure and the termination of his role was detrimental treatment by the BPS motivated by him blowing the whistle.
The Employment Tribunal initially dismissed his claim, holding that Mr McLennan was not a "worker" since he was unpaid and volunteered for the BPS and therefore could not bring a detrimental treatment claim.
On appeal, although the EAT upheld the Employment Tribunal's decision that Mr MacLennan did not have a contract and therefore was not a worker, it held that, the question to ask was did the parties intend to enter into a contractual relationship? A "broad-brush approach" has been adopted by case law to whether a situation is "analogous" to that of a worker, and to the issue of "other status".
When considering the scope of whistleblower protection, this required consideration of all the relevant surrounding circumstances. The Employment Tribunal had focussed almost entirely on the lack of pay and the fact that Mr MacLennan was a volunteer. Other relevant factors included the type of role undertaken and level of responsibility, the duties of the role, and the likelihood that the person will become aware of wrongdoing in the public interest. The matter was remitted to the Employment Tribunal for reconsideration.
Implications for the charity sector
The decision in MacLennan has caused considerable concern within the charity sector as it appears that charity trustees will now be protected under whistleblowing law. If this is the case charities will have to ensure that any disclosures made by trustees are taken seriously and investigated and managed properly. It's worth noting that the case has been remitted to the Employment Tribunal for reconsideration of this point so it will be interesting to see what happens.
Needless to say we'll keep you updated!
