Charity trustees as whistleblowers – has the position changed? A review of Dr MacLennan v The British Psychological Society v Secretary of State for Business and Trade and the Charity Commission

In February 2026, the Employment Tribunal (“ET”) published its reconsidered judgment in the case of Dr Nigel MacLennan and the British Psychological Society (“BPS”), on the question of whether whistleblowing protections granted to employees and workers could extend to charity trustees. In light of the potential public policy ramifications of the principles being decided, both the Secretary of State for Business and Trade, and the Charity Commission, intervened in the proceedings.

The ET held that Dr MacLennan, in his role as a charity trustee, was not entitled to bring a whistleblowing claim, because he was neither an employee or worker, nor in an analogous position. In addition, though he did have “other status” protection from discrimination under Article 14 of the European Convention on Human Rights (“ECHR”), and though he had been subjected to less favourable treatment by not being eligible to bring a whistleblowing claim, that treatment was objectively justified in the circumstances. This was because, firstly, the exclusion of trustees from whistleblowing protections was in the furtherance of the legitimate aim of avoiding conflicts of interest and preserving the financial interests of charities. Secondly the exclusion was proportionate, given the fact that the potential conflict of interest between a charity’s trustee’s responsibilities and bringing a whistleblowing claim might result in significant financial damage to the charity.

Dr MacLennan has confirmed that he will be appealing this decision.

What were the facts of the case?

Dr MacLennan was serving as a trustee and President-Elect of the British Psychological Society when he was expelled as a member in May 2021. This expulsion followed his reporting of allegations against the BPS to the Charity Commission.

Dr MacLennan brought an ET claim, arguing that trustees like himself, who oversee critical governance in charities, should receive the same whistleblowing protections as employees and workers. He also argued that his exclusion from whistleblowing protection legislation violated his rights under the ECHR, particularly his Article 10 right to freedom of expression and Article 14 right to protection from discrimination.

In 2023, the ET dismissed Dr MacLennan’s claim, ruling that he was not a worker under UK law and was therefore ineligible for whistleblowing protection. Due to his position as an unpaid, voluntary trustee, the ET ruled it had no jurisdiction to hear his complaints of whistleblowing detriment. Dr MacLennan appealed to the Employment Appeal Tribunal (“EAT”).

In July 2024, the EAT overturned the ET’s decision. Judge Tayler found that the ET had focused too narrowly on Dr MacLennan’s unpaid status. He ruled that trustees, despite being volunteers, often hold significant responsibilities and an “occupational status” akin to paid employees. Highlighting this, Judge Tayler commented that “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”. This finding was significant, because it had the potential to pave the way for over one million trustees in the UK to receive legal protection from whistleblowing detriment. Judge Tayler ruled that the case should be reconsidered by the ET.

The public interest in this case was reflected by the intervention of both the Charity Commission and the UK’s leading whistleblowing charity, Protect, at the EAT stage. Judge Tayler also, in allowing the appeal, invited the Government to intervene in the case going forward, due to its public policy implications; with the Secretary of State for Business and Trade subsequently joining as interveners, alongside the Charity Commission.

What did the ET find on reconsideration?

In February 2026, the ET published its reconsidered judgment. Judge Butler held that:

(i) Dr MacLennan’s role as a charity trustee was not analogous to that of an employee or worker. Judge Butler stated: “charity trustees are not workers; they are [volunteers who are] not paid to work for… and are not subordinate to the charity of which they are trustees. This is an important distinction… [Their] role… is one of governance and oversight which, in my view, is entirely different, and materially so, to an employee or worker who is paid by their employer and subordinate to them… [Another] material difference… [is] the obvious possibility [that a trustee can raise] any concerns directly with the Charity Commission which has statutory obligations to consider, investigate and act upon any wrongdoing reported… [In addition] any retaliation for making a protected disclosure could not include the nuclear option of dismissal as a detriment and consequently there is a much lower risk of… being vulnerable to retaliation which could damage their reputation and their livelihood.”

(ii) Dr MacLennan did, however, have “other status” for the purposes of Article 14 of the ECHR (protection from discrimination).

(iii) Dr MacLennan was treated less favourably by the statutory provisions in the Employment Rights Act 1996, in not being entitled to bring a whistleblowing claim against BPS.

(iv) However, this treatment was, objectively justified as a proportionate means of achieving a legitimate aim, in the circumstances. Judge Butler stated: “I find that the balance weighs in favour of finding that there is reasonable justification for excluding charity trustees from the benefits of [whistleblowing protection legislation]. There is a legitimate aim in avoiding conflicts of interest and preserving the financial interests of charities and that aim is one which benefits from that exclusion. I further consider the exclusion to be proportionate given, in particular, the potential conflict of interest between a charity trustee’s responsibilities and bringing a whistleblowing claim which might result in significant financial damage to the charity. There is, I find in this case, a clear relationship between the justification and proportionality”.

As stated above, Dr MacLennan has confirmed that he will be appealing this decision.

In response to the ET’s ruling, Protect called on the Government to extend whistleblowing protection to trustees. Andrew Pepper-Parsons, Director of Policy and Communications, is quoted in Civil Society as having said:

“Despite there being a requirement on trustees to speak up when they see wrongdoing in the charities they oversee, the current law does not extend whistleblowing protection to them. This judgment denies whistleblowing protection for trustees…The judge placed considerable weight on the secretary of state’s arguments that this is a matter for parliament to decide… What we really need is for the government and MPs to act quickly and extend whistleblowing protection to include trustees – something ministers already have the power to do via secondary legislation – rather than leave it to whistleblowers to force the change via the courts.”

What does this mean for organisations?

On the particular facts of this case, and despite the EAT’s indication that an alternative outcome might be possible, the ET has found that charity trustees are not eligible to bring whistleblowing claims, and that any discrimination arising from this is objectively justifiable.

However, there are a few important points to bear in mind here:

(i) As a first instance ET decision, MacLennan is only binding on the parties, and not on other ETs or any appellate courts. As ever, each case will turn on its own facts, and it is entirely possible that a different ET, looking at a different set of facts, may reach a different conclusion in the future. This could be either because it decides that an individual trustee is, on the facts, a worker (or in an analogous position); or because it decides that any discrimination arising from an individual trustee’s exclusion from whistleblowing protection legislation is not objectively justifiable as a proportionate means of achieving a legitimate aim in the circumstances.

(ii) It is to be expected that there will be an appeal in Dr MacLennan’s case, and it remains to be seen whether the EAT (which was, of course, sympathetic to the position of trustees potentially having legal protection as whistleblowers on its earlier consideration of this subject) will agree with the approach that has been taken by the ET.

(iii) Future legislative change on this point is also a possibility.

Therefore, the question of whether charity trustees may be entitled to rely on whistleblowing protection has not yet been conclusively resolved.

In light of this, to minimise legal risk, charities should continue to ensure that they have appropriate processes under which whistleblowing concerns can be raised by trustees, and that these are appropriately investigated. Trustees should not be treated detrimentally for having raised such concerns, and could still potentially be eligible to claim compensation for injury to feelings.

That is, however, not to say that trustees could be workers for other purposes (such as for bringing discrimination claims under the Equality Act 2010), or that other volunteers would similarly be within the scope of the legal protection for whistleblowers (although all concerns of a whistleblowing nature by volunteers should of course be taken seriously and looked into). These are not legal issues that have been addressed by the MacLennan case.

If this judgment raises issues about your policies or approaches around whistleblowing, we may be able to help. Please do get in touch.

The material in this article is provided for guidance and general information only and is not intended to constitute legal or other professional advice upon which you should rely. In particular, the information should not be used as a substitute for a full and proper consultation with a suitably qualified professional. Please do contact the Bates Wells team if you require further advice.