Whistleblower Protection | charity trustee

The recent appeal decision in the case of MacLennan v British Psychological Society has provided an important update on the future position of charities on whistleblowing claims. The Employment Appeal Tribunal (‘EAT’) has concluded that the decision to prohibit charities from bringing whistleblowing claims on the basis that they were not ’employees’ was wrong and therefore upheld MacLennan’s appeal.

Although McLennan’s case has been sent back to the Court for further consideration/action, the EAT’s decision has opened the door to watchdogs wanting to blow the whistle. With this in mind, charities should pay attention to this and the Court’s upcoming decision.

Recap regarding reporting violations (whistleblowing).

Reporting violations (whistleblowing) refers to actions taken by workers/laborers to report mistakes committed by their employers, such as making disclosures of information in the public interest. The Employment Rights Act 1996 (“the Act”) protects whistleblowers from adverse treatment or being dismissed as a consequence of “blowing the whistle”. So far, according to the law, only workers and workers can get whistleblowing protection.

The basis of MacLennan’s claim

MacLennan is a trustee of the BPS (registered charity). He made a series of complaints and disclosures to the Charity Commission, in which he raised concerns about the way the charity was run. After that, his role as Trustee and position of President-elect of BPS was terminated. MacLennan brought a claim against the charity and sought to rely on losses incurred by whistleblowing under the Act.

the law

These laws protect workers from any harm, or willful failure, committed by an employer on the basis that they have disclosed such matters.

Most importantly, the Act seeks to protect ‘workers’, as defined, when making protected disclosures.

Who are the ‘workers’?

Article 230(3) of the Law defines a worker as an individual who has signed or worked under (a) an employment contract or (b) another contract (express or implied) in which the individual undertakes to perform work/services.

Therefore, the key question for the Court in MacLennan was whether a charity trustee fell within the definition of employee.

Are charity trustees employees?

The EAT agreed with the Court’s decision that the charity trustee did not fit the strict definition of ’employee’ under the Act. MacLennan does not have a contract, nor does he have a contractual relationship with the charity. The absence of remuneration between BPS and MacLennan is an important factor that hinders the parties’ intention to enter into a contractual relationship.

However, the EAT disagreed with the Court’s decision that the definition of ‘worker’ could not be read as being intentionally consistent with the rights of guardians under the ECHR (particularly Articles 14 and 10). By ignoring this, the Court has failed to apply the ‘broad’ approach that case law has adopted. The court placed too much emphasis on the lack of remuneration in MacLennan’s volunteer role and status, which was relevant but not determinative. The EAT is of the view that there is a strong argument that a charity trustee is similar to an employment status, given the nature of the role, responsibilities and regulatory regime.

Protection against whistleblowing for charitable institutions?

The EAT’s application of the ‘broad-brush’ approach suggests that charities, on a perusal reading, may have an employment status that allows them to rely on whistleblowing under the Act. Depending on the Court’s further action, we may see a change in the position where charities can rely on the whistleblowing protection afforded to ‘workers’ under the Act because their employment status is similar to that of ‘workers’.

What is next?

While we await further developments, the EAT’s decision in MacLennan provides a real possibility that charities will have whistleblowing protection under the Act. We will continue to provide updates as more information is released.

Meanwhile, charities must ensure that they have appropriate processes in place to investigate cases of whistleblowing – including disclosures made by trustees.

Your organization may already have a whistleblowing policy. However, this should be reviewed and revised as appropriate in line with future Court decisions.

If you have any questions about this blog, or any other employment matter, please do not hesitate to contact a member of the Employment team.