Charity trustees may now gain protection as whistleblowers

A significant Employment Appeal Tribunal decision was published on Monday. In MacLennan v The British Psychological Society the tribunal was asked to consider whether the applicant, a charity trustee who was President-Elect could claim protection under whistleblowing legislation.

Until now, only employees and workers have been able to claim whistleblowing protection.

Mr MacLennan’s role was a significant commitment:

• he was expected to work a minimum number of days per year;
• he was entitled to claim compensation for lost earnings for most of those days;
• he had an important role within the organisation, chairing the trustee board;
• he had a planned term of at least 3 years as President-Elect, President then Vice President. 

Mr MacLennan had campaigned for election with the intention to address concerns about the manner in which the charity was run.

In May 2021, following a number of disclosures to the Charity Commission and a grievance process, Mr MacLennan was expelled as a member, which terminated his role as trustee and President-Elect. He then went to the Employment Tribunal asking whether he could claim protection as a whistleblower. In summary, this was dismissed as he was a volunteer.

On appeal, he argued that trustees who serve an important role in their organisation should be classed as workers and therefore able to claim protection from discrimination on the basis of whistleblowing.  He also claimed protection under the European Convention of Human Rights and the Human Rights Act on freedom of expression grounds. 

In the Employment Appeal Tribunal the judge ruled that the Employment Tribunal had given too much weight to the fact that Mr MacLennan was an unpaid volunteer. The fact that charity trustees often hold positions of significant responsibility gives them an “occupational status” similar to workers. The decision was sent back to the Employment Tribunal for reconsideration. 

According to the Commission’s latest figures there are 924,077 charity trustees in England and Wales (soon to be 924,078 when the Author is confirmed in her currently top secret, extremely exciting appointment!) This decision could give important protection to charity trustees, who are extremely well placed to benefit from it.

This is a matter of ‘considerable public importance’, and the Employment Appeal Tribunal permitted the Charity Commission and Protect ‘the whistleblowing charity’ to intervene in proceedings. Protect runs a dedicated helpline to support whistleblowers in the charity sector. The case gives some insights into the problem – of 198 trustees who called the helpline, over 50% had been “subject to detriment, bullied, forced out of their role or that they had resigned as a result of raising concerns”.

What should we do now?

For now, with the very real possibility that charity trustees may gain protection under whistleblowing, charities should ensure that there are appropriate processes in place to investigate trustee whistleblowing and no trustee should be disadvantaged for having made a disclosure.

The status of volunteers and trustees is coming under scrutiny at the moment – you may remember our report on the volunteer at the Coastal Rescue Service classed as a worker, and therefore able to claim protection under equality law.  

If you have any questions please contact Rebecca Pallot, a partner in our employment team.