The significant recent Employment Appeal Tribunal case of MacLennan v The British Psychological Society [2024] EAT 166 considered whether charity trustees have the right to protection from detriment for whistleblowing.
Background
Workers who make a “protected disclosure” are protected from suffering detriment by their employers in connection with the disclosure under the Employment Rights Act 1996 (the “Act”). Protected disclosures are broadly defined but should be made in the public interest and can relate to actions ranging from criminal offences to environmental damage. “Detriment” is not defined in the Act but includes not only overt actions such as bullying or dismissal of the whistleblower but also more subtle retribution such as the deliberate failure to provide workplace and professional development opportunities. Any treatment that is less favourable than the individual would otherwise have experienced could count as detriment.
However, to qualify for the above protection you must first be considered a “worker” under the Act – a definition that was widely understood not to include a charity trustee, who rarely has a contract of employment.
Facts
Dr MacLennan was a trustee of The British Psychological Society, a registered charity (the “Charity”). He had been a member of the Charity since 1984 and had concerns about how it was run. He campaigned to be the Charity’s President-Elect in 2020 with the aim of addressing these concerns. He was chosen as its President-Elect in May 2020 and appointed in that role at the end of June 2020.
Dr MacLennan contended that he made 4 protected disclosures in June 2020 (before his appointment) and a further 9 protected disclosures in the second half of 2020. Relations between Dr MacLennan and the Charity became strained. He was subject to a grievance and an investigation before being expelled from membership of the Charity. His roles as trustee and as President-Elect were terminated.
Dr MacLennan brought a claim in the Employment Tribunal, arguing that he was protected from suffering detriment relating to whistleblowing under the Act. He also contended that the Charity had interfered with his right to freedom of expression under the European Convention of Human Rights (the “ECHR”) and discriminated against him in contravention of the ECHR.
The tribunal held that Dr MacLennan could not be considered a worker of the Charity, so was not protected under the Act. It also held that although Dr MacLennan’s freedom of expression as a whistleblower was at issue, he had not been discriminated against by the Charity.
Dr MacLennan appealed against the decision to the Employment Appeal Tribunal (“EAT”).
Judgment of the EAT
The EAT concluded that the Employment Tribunal had not adequately considered the circumstances of Dr MacLennan’s claim in connection with the ECHR. The Act needed to be read through the lens of the ECHR. It relied on Baroness Hale’s judgment in Gilham v Ministry of Justice [2019] UKSC 44 that a district judge could have whistleblowing protections under the Act, even in the absence of a contract.
The EAT stated that lack of remuneration is not the only relevant factor in determining whether an individual should be treated as a worker for the purposes of the whistleblowing provisions. Other factors may include the duties involved in a role and the whistleblower’s vulnerability to retaliation, including the extent to which livelihood or reputation might be at risk.
The case has been remitted to the Employment Tribunal, which will need to reconsider whether Dr MacLennan’s status as a trustee and President-Elect was analogous to being a worker for the Charity.
Implications for employers and charities
The decision opens the possibility for both charity trustees and volunteers to claim protection against detriment for whistleblowing, although this will depend on the facts of each case.
The EAT acknowledged that this is a matter of considerable public importance and suggested that the Government may choose to intervene when the case is reconsidered by the Employment Tribunal.
On a separate but connected note, the EAT acknowledged that the Act had been drawn up to protect workers who were making disclosures in the public interest. It therefore determined that workers are protected from being subjected to a detriment for making a protected disclosure to their current employer prior to the commencement of their employment. HHJ Tayler stated “I can see no reason to interpret the provisions to create a lacuna that would exclude such a worker”. This part of the decision will broaden the extent of the whistleblowing protections.
If you have any questions regarding charity trustees or the whistleblowing provisions, please contact Ed Henderson or Nishita Gudka at Ed.Henderson@LBMW.com or Nishita.Gudka@LBMW.com or by phone on 0207 222 5381.