Tribunal to hear whistleblower case that could lead to protections for charity trustees
Melanie May | 22 July 2024 | News
The Employment Appeal Tribunal will hear a whistleblowing claim this week (24 and 25 July) that could potentially ensure whistleblower protections for charity trustees, as well as other trustees in the health and education sectors, and volunteers.
The claim is being brought by Dr Nigel MacLennan against the British Psychological Society (BPS). Dr MacLennan was a Trustee and President-Elect for the BPS at the time of his expulsion in May 2021. Following his appointment, he uncovered serious concerns of corporate governance failings within the BPS, including potentially illegal practices, which he reported to the Charity Commission.
The Charity Commission made the first of four regulatory interventions into the BPS within 11 days of Dr Nigel MacLennan taking office, based on his evidence. However, Dr Maclennan was expelled and dismissed from office by the BPS, which he says damaged his reputation and career, and impacted his mental health.
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Dr MacLennan took his claim to an employment tribunal but this found that as a trustee rather than a worker at BPS he was not protected by whistleblower legislation.
In bringing this appeal, Dr MacLennan and his legal team will argue that he entered into a contract with the BPS and was fulfilling his legal obligations in blowing the whistle, and should therefore be protected. They will also argue that Dr MacLennan and other trustees are protected from reprisals for blowing the whistle under Articles 10 and 14 of the European Convention on Human Rights (ECHR).
The Judge of the Employment Appeal Tribunal has allowed the appeal, and has also made an order that the Government be invited to intervene in this case because of its significant public interest implications.
Commenting, Dr MacLennan said:
“Charity trustees and trustees of other vital public organisations have a duty to report concerns of serious failings in the organisations they oversee and can face legal, personal and professional liabilities if they fail to do so. Yet in disclosing these failures, trustees are not provided any legal protections and can face financial and career ruin, on top of immense mental and emotional distress when they do so. This is what happened to me and there is a serious anomaly that needs to be fixed here if trustees are to be effective in undertaking the essential scrutiny of the organisations they are obliged to protect, without fear of life-ruining reprisal.
“If the current position stays as it is, trustees will be deterred from taking up vital public offices as they find themselves in the impossible position of having a legal duty to report wrongdoing, but with no legal protections for doing so.”
Dr MacLennan is being represented pro bono in his case by Chris Milsom at Cloisters Chambers and Oliver Spratt at Morrison Foerster.
Evidence from whistleblowing charity
Research by whistleblowing charity Protect, which has been granted permission to intervene in this case, shows that, as of June 2024, its whistleblower helpline had received 2,137 calls from charity workers and former trustees. Of these 139 reported that they had already raised their concerns when they contacted Protect, over 50% reported being subject to detriment, bullied, forced out of their role or that they had resigned as a result of raising concerns.
Protect has submitted evidence to the Employment Appeal Tribunal about the impact of whistleblowing on trustees, and is arguing that trustees should have rights to receive and impart information in accordance with Article 10 (freedom of expression) of the European Convention of Human Rights.
Sybille Raphael, Legal Director of Whistleblowing charity Protect, said:
“Trustees serve an essential and valuable role in ensuring charities comply with the law and operate under strict financial and governance regulations. As the eyes and ears of a charity, they are key to detecting and deterring wrongdoing such as fraud, safeguarding issues and mismanagement. They need to feel free and able to call out wrongdoing when they see it.
“But bringing uncomfortable truths to light is not always welcomed – organisations often become defensive, shooting the messenger rather than addressing the issues raised. This is why the law needs to recognise and protect trustees as whistleblowers. If we want trustees to come forward, we need to ensure that they have a remedy if they suffer for speaking up.
“We hope that this case will take a step towards expanding whistleblowing rights to all those in the workplace who need protection.”
About Melanie May
Melanie May is a journalist and copywriter specialising in writing both for and about the charity and marketing services sectors since 2001. She can be reached via thepurplepim.com.