Whistleblowing protection and charity trustees

In the recent case of MacLennan v British Psychological Society, the Employment Appeal Tribunal looked at whether whistleblowing protection should apply to charity trustees.

Background

Whistleblowing is the disclosure of information which relates to a suspected wrongdoing or danger in the workplace. Workers have the right not to be subjected to a detriment on the ground that they have made a protected whistleblowing disclosure (see our earlier blog).

A worker is defined as "an individual who has entered into or works under (or, where the employment has ceased, worked under) (a) contract of employment, or (b) any other contract, whether express or implied and (if it is express) whether oral or in writing, whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual" ('limb (b) workers').

The usual definition of worker is extended in relation to the whistleblowing detriment provisions to some categories of individual who would not ordinarily be covered, for example police officers, agency workers and self-employed NHS doctors. In addition, according to case law, judicial office holders are protected.

The facts

Dr MacLennan was a trustee and President-Elect of the British Psychological Society ('BPS'). He was required to work approximately 20 days a year which included attending the AGM and six board meetings. His role was unpaid although he was entitled to claim some compensation for loss of earnings.

Dr MacLennan had some serious concerns about the manner in which BPS was run which led to him making 13 protected disclosures, some of them before he started his role as President-Elect. Relations between BPS and Dr MacLennan deteriorated, and he was ultimately expelled.

The claim

Dr MacLennan brought a claim for whistleblowing detriment, arguing that trustees who oversee critical governance in charities should receive the same whistleblowing protection as workers. He also argued that his exclusion from whistleblowing protection breached his rights under the European Convention on Human Rights ('ECHR'), in particular Article 10 (the right to freedom of expression) and Article 14 (protection from discrimination).

The decision

Are charity trustees workers?

The Employment Appeal Tribunal ('EAT') agreed with the employment tribunal that there was no contractual relationship between the parties, express or implied. The tribunal had been correct to consider factors such as the fact that Dr MacLennan had been elected rather than appointed, the expectation that charity trustees were volunteers and the fact that the activities were carried out pro bono.

The EAT also considered whether Articles 10 and 14 of the ECHR required that Dr MacLennan be treated as a worker, despite the fact there was no contractual relationship. The tribunal had asked itself the correct questions, including whether Dr MacLennan had been treated less favourably than others in an analogous situation, and if the reason for the less favourable treatment was "some other status". However, the tribunal had erred by focussing too much on Dr MacLennan's volunteer status and lack of remuneration, rather than adopting "a broad-brush approach". All the relevant considerations should have been taken into account including:

• The type of role undertaken and the 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
• The availability of alternative routes to making disclosures of wrongdoing and any alternative protections
• Any other relevant distinction between the office holder and an employee and/or limb (b) worker.

Applying these factors, it was the EAT's view that "There was a strong argument that being a charity trustee is akin to an occupational status. The nature of the role, responsibilities and the regulatory regime applied to charity trustees is strongly suggestive of a status". The case was sent back to the tribunal to reconsider these points.

Are disclosures made before the engagement starts protected?

It is well understood that a qualifying whistleblowing disclosure can be protected if it was made during employment; or after employment, provided there is some connection between the disclosure and the former employment e.g. where an employer refuses to provide a reference. This case clarifies that, if there is a contract in place, a disclosure made before the start date can also be protected. What matters is status at the time of the detriment rather than at the time of the disclosure.

Comment

The EAT's decision has paved the way for charity trustees to receive protection from detrimental treatment after making whistleblowing disclosures. The EAT recognised that - particularly as charity trustees are under specific statutory duties which could compel them to raise concerns about wrongdoing - this question is of "considerable public importance" and invited the tribunal to ask the Secretary of State whether they wished to intervene.

Whilst we await the tribunal's determination, it is clear that the final decision could have significant implications for those in the charitable sector. It may also lead other non-contractual office holders to challenge their status.

To discuss anything raise in this blog, please contact a member of our employment and immigration team.