On Monday, the Employment Appeal Tribunal (EAT) published its judgment in the case of Dr Nigel MacLennan and the British Psychological Society (BPS).
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.
MacLennan brought his claim to a tribunal, and argued that trustees, like himself, who oversee critical governance in charities, should receive the same whistleblowing protections as workers. MacLennan also argued that his exclusion from whistleblowing protection legislation violated his rights under the European Convention on Human Rights (ECHR), particularly his right to freedom of expression.
In 2023, an Employment Tribunal (ET) dismissed 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. MacLennan appealed this decision, which was considered by the Employment Appeal Tribunal in July 2024.
The EAT overturned the earlier ET’s decision. Judge Tayler found that the ET had focused too narrowly on 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 renumeration and the linked fact that the claimant was a volunteer. These were relevant factors, but not determinative.”
Judge Tayler ruled that the case should be reconsidered by the ET, potentially paving the way for over one million trustees in the UK to receive legal protection from whistleblowing detriment.
The public interest in this case was reflected by the intervention of both the Charity Commission and the UK’s leading whistleblowing charity, Protect in the appeal. Further, Judger Tayler, in allowing the appeal, invited the Government to intervene in this case going forward due to its public policy implications.
Implications of the judgment
Charities should ensure that they have appropriate processes under which whistleblowing concerns by trustees should be raised and will be investigated. Trustees should not be treated detrimentally for having raised such concerns. It should be borne in mind that trustees do now potentially have a recognised status to bring Employment Tribunal claims for whistleblowing detriment, where compensation can be awarded for injury to feelings, not solely for financial losses which would not apply to unpaid trustees.
The judgment does not mean that trustees would 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 addressed by charities). It is, nonetheless, a significant development of which all charities need to be aware.
If this judgment raises issues about your policies or approaches around whistleblowing, we may be able to help. Please do get in touch.