Tribunal decision opens door for UK trustees to be protected as whistleblowers
Melanie May | 22 October 2024 | News
A decision handed down yesterday (21 October) by the Employment Appeal Tribunal (EAT), could lead to UK charity trustees receiving protection when they act as whistleblowers on corporate failures within the charities they oversee.
Until now, protection has not been available, due to trustees generally being unpaid and without a contract.
Details of the case
The claimant in the case, Dr Nigel MacLennan, was a charity trustee elected to the role of President-Elect of the British Psychological Society. Dr MacLennan had concerns about how the Society was run, and in 2020, campaigned to be elected to the role with the aim of addressing these concerns.
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Told that he had been elected on 4 May 2020, he contended that he made four protected disclosures between 3 June 2020 and 19 June 2020. He then took up the role of President-Elect on 30 June 2020 and said he made a further nine protected disclosures between 1 July 2020 and 17 December 2020.
An independent investigation was conducted by a barrister. On 4 May 2021, the claimant was expelled from membership, which terminated his role as a Trustee and President-Elect.
Dr MacLennan contended that he was, or should be treated as, a worker so as to be protected as a whistleblower. An Employment Tribunal in 2023 however held that he was not at any time a worker of the respondent, and decided it had no jurisdiction to hear his complaints of detriment for making protected disclosures. The Employment Tribunal also held that it was not therefore within the scope of the judgment to determine whether Dr MacLennan’s expulsion from membership was fair, leaving him unprotected.
Dr MacLennan appealed and argued he was a worker or should be treated as a worker for relevant purposes under his ECHR rights, including to freedom of protection. At the appeal stage, whistleblowing charity Protect intervened on behalf of the claimant, emphasising the public importance of whistleblowing.
Judge upholds claimant’s appeal
In the judgment published yesterday, the Judge found that the rights the trustee as an officer holder and under the ECHR to freedom of expression were not compatible with him being denied any whistleblowing protection in the UK. The Judge upheld the claimant’s appeal and has sent the case back to the Tribunal to consider the matter further.
Judge James Tayler from the EAT concluded:
“I consider that the Employment Tribunal did not adequately consider the relevant circumstances and conduct the broad-brush assessment necessary to decide whether there was an “analogous situation” between the claimant and employees or limb B workers and whether being a charity trustee, President-Elect and/or President is an “other status.
“The Employment Tribunal appears to have focused almost entirely on lack of remuneration and the linked fact that the claimant was a volunteer. These were relevant factors, but not determinative.”
‘Strong argument’ for protection
Paul Daniels, partner at Keystone Law, the solicitors representing Protect, commented:
“In the crucial part of the judgment, the Judge found that there was a strong argument that being a charity trustee, President-Elect and/or President is akin to an occupational status (which would be likely to unlock the door to protection).
“The Judge also commented that the nature of the role, responsibilities and regulatory regime to charity trustees is strongly suggestive of such a status.
“Although there are other legal issues to factor in before protection is formally granted, this is a strong indication that many UK trustees will be protected going forward.
“It was also usefully held by the EAT that a worker is protected from being subject to a detriment by his current employer for making a protected disclosure to that employer prior to the commencement of the employment. This will extend UK whistleblowing laws more widely.”
‘Victory for common sense’
Elizabeth Gardiner, Chief Executive of Protect, said the judgment was welcomed as ‘victory for common sense’ that could protect and empower trustees across the UK, adding:
“Whistleblowing is a key instrument of good governance, but all too often it comes with a high cost for those who blow the whistle. Confronting senior executives and standing up against the pack is fraught with dangers and organisations can often become hostile to those challenging their decisions. In many cases it’s the whistleblower who faces the heat rather than those behind the wrongdoing.
“As influential and critical members of a charity, trustees are essential in detecting and deterring wrongdoing such as fraud, safeguarding issues and mismanagement. This ruling should mean that many more trustees will have the confidence and legal protection to call out wrongdoing when they see it.
“However, it is grossly unfair to expect individual whistleblowers to bring cases through the courts system, with all the stress and cost that falls on them, in order to make these sensible changes to the law. This judgment needs to be the spur to make the Government act. Our legislation should be updated so that trustees – along with the many more thousands of people who currently sit outside the parameters of whistleblowing law, including self-employed contractors, job applicants and many others– get the protections they need and deserve.”
‘Momentous result’
Commenting on the appeal, 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 currently 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.
“I am extremely pleased that the Employment Appeal Tribunal has found in my favour and this ruling will make it much harder for the employment tribunal in my case – and other employment tribunals deciding similar cases – to deny whistleblower protection to charity trustees who are forced to speak out against wrongdoing. This result is momentous and could go a long way towards ensuring that high standards of corporate governance are upheld in the charity sector.”
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.