Trustees of charities could be protected from whistleblowers

After a landmark ruling by the Employment Appeal Tribunal, charity trustees may be protected from whistleblowing harm.

Dr Nigel MacLennan, a trustee of the British Psychological Society, was elected as its president-elect. He campaigned for this position, expressing his concerns about how the charity is run.

MacLennan received notification that he was elected to the position of president-elect in May 2020. He then made four protected disclosures during June of that same year. He officially took on the role of BPS president-elect in June 2020. In addition, he made nine more protected disclosures during that year.

A barrister conducted an independent investigation and MacLennan’s membership was terminated in May 2021.

He sued the charity in 2023, arguing that he was entitled to be treated as an employee and protected from being defamed for whistleblowing.

He informed the tribunal that his investigation had revealed “serious concerns about corporate governance failures within BPS, as well as potentially illegal practices”.

He claimed that his expulsion caused “profound harm to his career and reputation” and had negatively affected his mental health.

The first tribunal ruled that it had no jurisdiction to decide this and therefore, it would not fall within its scope of judgment to determine whether his dismissal was justifiable.

Dr MacLennan, however, appealed and argued that he should have been treated as an employee for the purposes of the European Convention on Human Rights. This included his right to freedom expression.

The judge at the EAT upheld certain aspects of his appeal, that he be treated as a workman, and now has sent the case to the tribunal for a decision on whether he was unfairly or fairly dismissed.

The EAT heard the case in October. Judge James Tayler stated: “I believe that the employment tribunal failed to adequately consider all the relevant circumstances, and did not conduct the broad brush assessment necessary to determine whether the claimant was in an analogous’ situation with employees or limb-B workers [casual workers or gig workers], and whether being a charity trustee, president-elect, or president is an other status.’

Judge Tayler stated that the initial tribunal was “almost exclusively” focused on the lack of compensation and the fact that the claimant is a volunteer. He added that “these were relevant factors but not determinative”.

He claimed that the tribunal should’ve considered other factors when deciding if it was within their jurisdiction.

• The type of role and the level of responsibility
• The duties of the role
• Probability that the person is aware of the wrongdoing
• The importance of the person who discloses wrongdoings in the public interest
• The vulnerability of a person to retaliation after making a protected disclosure
  
  Included is the potential impact on livelihood or reputation
• Alternative routes for reporting wrongdoings and alternative protections
• Any other distinction that is relevant between an employee or limb B worker and the person holding the office.

Protect, a whistleblower charity, supported Dr MacLennan in his appeal to the first tribunal.

Paul Daniels, partner of Keystone Law and solicitors for Protect, said that the judge in the important part of the judgement found that there is a strong argument to the effect that being a charity trustee, president-elect, or president, is similar to an occupation (which could unlock the door to Protection).

The judge commented on the fact that the charity trustees’ role, responsibilities, and regulatory regime strongly suggests such a position.

“Although other legal issues must be considered before formal protection is granted, it is clear that many UK trustees are going to be protected in the future.

The EAT also held that a worker was protected against being degraded by his employer if he made a protected disclosure prior to commencing employment. This decision will expand the UK whistleblower laws.”

Elizabeth Gardiner is the chief executive officer of Protect. She welcomed this ruling as “a victory for common sense”. She stated: “Whistleblowing can be a powerful tool for good governance. But it often comes at a cost.

The dangers of confronting senior executives or standing up to the group are real. Organisations can become hostile towards those who challenge their decisions. In many cases it is the whistleblower that faces the heat, not the people who are responsible for the wrongdoing.

As influential and crucial members of a charitable organization, trustees play a vital role in detecting and preventing wrongdoing, such as fraud and mismanagement. This ruling will give more trustees the confidence to report wrongdoing.

Gardiner said that it is “grossly unjust” to expect whistleblowers who are able to do so to go through the court system, as this can be expensive in terms of money and mental health.

She said, “Our legislation needs to be updated in order for trustees, as well as the thousands of other people, such self-employed contractors and job applicants, who are currently outside of the whistleblowing laws, to receive the protections and benefits they deserve.”

Protect and a few MPs are campaigning in favor of an amendment to Employment Rights Bill which would force companies investigate a wider range of complaints that fall outside the Public Interest Disclosure Act.

BPS spokesperson: “This case is complex and could have far-reaching consequences for the charity sector. The case arose after two independent investigations that confirmed allegations of bullying, which led to Dr MacLennan’s expulsion from the British Psychological Society.

The EAT dismissed two of the four grounds in this case and confirmed that MacLennan was not a worker and therefore could not bring a whistleblowing complaint on that basis. The EAT referred the two remaining grounds back to the initial tribunal for further review. We do not think it appropriate to make any further comments as this is a legal proceeding that is still ongoing.

Personnel Today has HR jobs for the charity sector.

Browse HR jobs in the non-profit/charity sector