Charity trustee may have whistleblower protection

Legal protection for trustees may be required to secure their right to freedom of expression.

Protections for whistleblowers under the Employment Rights Act 1996 (ERA) are stated to apply only to workers and employees. Volunteers and trustees in the UK have not therefore been protected in law from retaliation because they have blown the whistle.

There have been cases which have considered the boundaries of the current legal protections. In our article from 2019: Could volunteers and trustees be protected as whistleblowers? we reported on the Supreme Court’s judgment in Gilham v Ministry of Justice. The court in that case determined that denying a salaried district judge whistleblower protection was in breach of Article 14 of the European Convention on Human Rights (ECHR) as it impinged on her right to freedom of expression on the ground of her status. For the purposes of whistleblowing protections only, this case extended the definition of a worker within the Employment Rights Act 1996 to judicial office holders.

On the question of the employment status of volunteers, our readers may also be interested in our recent article from June 2024: When does a volunteer have worker’s rights? where a volunteer who had the right to payment for some of his volunteer duties was found to be a worker.

Article 14 ECHR protects people from discrimination in the way ECHR rights are secured. It states: "The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status."

A recent case in the EAT has now indicated that unpaid charity trustees should be afforded protection from detriment for blowing the whistle as to do otherwise would discriminate against them on the basis of their trustee status.

Case details: MacLennan v British Psychological Society

Mr MacLennan was a trustee of the British Psychological Society (BPS), a registered charity. He was elected to the position of president-elect, having campaigned to be elected with the aim of addressing his concerns about the way BPS was run.

Mr MacLennan raised a number of complaints following his election, both before and after taking up the role in June 2020. 

Relations between the claimant and the senior management team became strained, which resulted in a grievance against Mr MacLennan which was investigated by a barrister. In May 2021, Mr MacLennan was expelled from membership of the BPS. This expulsion terminated his role as a trustee and president-elect.

Mr MacLennan brought a whistleblowing detriment claim which was dismissed by an employment tribunal on the basis that he was not a worker or an employee. When examining his employment status, it found that there was no intention to enter into a contractual relationship and so no contract of any kind between Mr MacLennan and the BPS (a contract being a pre-requisite for worker or employee status).

The tribunal also decided that this case was distinguished from the case of Gilham because Mr MacLennan was not remunerated and was acting for the BPS purely as a volunteer.

Mr MacLennan appealed to the Employment Appeal Tribunal (EAT). The EAT upheld the tribunal’s decision that the claimant did not meet the statutory definition of a worker, with the lack of remuneration being a significant indicator that there was no intention to enter into a contractual relationship and therefore there was no contract.

The EAT set out the key questions when considering whether the claimant’s Article 14 ECHR right had been breached:

1. whether the facts fell within the ambit of one of the ECHR rights;
2. whether the claimant had been treated less favourably than others in an analogous situation;
3. whether the reason for that less favourable treatment was because of some “other status”; and
4. whether the difference of treatment was without reasonable justification.

It was accepted that the right to freedom of expression was applicable to the facts in this case.

The claimant had been denied potential protection as a whistleblower which would have been afforded to worker and employees and so a key issue was whether he was in an “analogous situation” to workers and employees.

The EAT noted that a “broad-brush approach” should be taken to the question of whether situations are analogous (with there being no requirement for them to be identical) as well as to the question of “other status”.

The EAT held that the tribunal appeared to have focused almost entirely on lack of remuneration and that Mr MacLennan was a volunteer. The EAT commented that these were relevant factors, but not determinative and usefully listed a number of other potentially relevant factors when considering whether the claimant was in an analogous situation to employees and workers:

1. the type of role undertaken and level of responsibility;
2. the duties of the role;
3. the likelihood that the person will become aware of wrongdoing;
4. the importance of the person making disclosures of wrongdoing in the public interest;
5. the vulnerability of the person to retaliation for making a protected disclosure – including the extent to which livelihood or reputation might be at risk;
6. the availability of alternative routes to making disclosures of wrongdoing and any alternative protections; and
7. any other relevant distinction between the office holder and an employee and/or worker.

On the question of whether the claimant had a “status” which could be the reason for less favourable treatment, the EAT stated that: “There was a strong argument that being a charity trustee, President-Elect and/or President is akin to an occupational status. The nature of the role, responsibilities and regulatory regime applied to charity trustees is strongly suggestive of a status.”

The case has now been sent back to the same tribunal to reconsider the question of whether Article 14 ECHR has been breached.

The arguments for whistleblower protection to be extended to charity trustees

A final decision in this case will now be awaited but the judgment of the EAT provides a strong indication that ERA whistleblower protection may be extended to charity trustees where the seven factors above point to that.

Protect, the whistleblowing charity, intervened in the case and emphasised that unpaid volunteers, such as charity trustees, can suffer reputational damage just as much as workers. Protect expressed concern that this could have a chilling effect on a volunteer’s willingness to blow the whistle. It also pointed out that the EU Whistleblowing Directive (which does not apply to the UK) protects “persons belonging to the administrative, management or supervisory body of an undertaking”, including unpaid trustees, from whistleblowing detriment. Protect argues that all charity trustees should be treated as workers for the purposes of whistleblowing protection.

The Charity Commission also intervened in the case, making clear that it encourages charity trustees and volunteers to report whistleblowing concerns to the Commission, but its guidance states that they are not protected from detriment for doing so.

The EAT commented that due to important policy implications arising from this decision, the tribunal may wish to ask the Government to intervene alongside Protect and the Charity Commission when the case returns to the tribunal.

Next steps for charities

Many charities will already have in place whistleblowing policies which can be used by trustees and volunteers as well as workers and employees to raise concerns about wrongdoing and potential legal breaches. This approach helps to encourage everyone involved in a charity to come forward with concerns in the public interest and to create a culture of transparency and accountability. However, it has been the case that those raising a concern under such a policy without being a worker or employee risk doing so without legal protection from detriment as a result.

This decision increases the likelihood that charity trustees, especially those with a high level of responsibility and risk of reputational damage, will be able to bring claims for whistleblowing detriment if they suffer a disadvantage because of raising a public interest concern.

Unpaid trustees are unlikely to be able to claim for any significant financial loss in such a claim, but it is important to note that awards for successful whistleblowing detriment claims include injury to feelings awards which are connected to the claimant’s distress rather than financial loss.

Whistleblowing policies should make clear that those raising concerns, no matter their status, should not be penalised for doing so. Those who investigate and manage processes under a whistleblowing policy or other procedure should receive regular training, including on steps to reduce the risk of retaliatory decision-making.