Date updated: Thursday 31st October 2024
Introduction
This was the question for the Employment Appeal Tribunal (EAT) in the case of MacLennan v The British Psychological Society (the BPS).
Background
Mr MacLennan was a member of the BPS and had concerns about how the BPS was run. He wished to address these concerns and consequently campaigned to be elected as President-Elect; he was successful and elected in May 2020. He claimed that he made four protected disclosures in June 2020, prior to him taking up his President-Elect role. He claimed he subsequently made nine protected disclosures between July and December 2020.
Mr MacLennan’s relationship with the SMT became strained, resulting in a grievance being made against him. Following an investigation by a barrister, he was expelled from membership, resulting in his termination as trustee and President-Elect.
Mr MacLennan brought a claim in the Employment Tribunal, asserting that he had suffered detriments because he made protected disclosures. The preliminary issue for the employment tribunal to decide was whether, as a trustee, he had the protection of the whistleblowing legislation.
The Employment Tribunal decision
In order to obtain protection from the whistleblowing legislation, an individual must be a “worker”. The Employment Tribunal took into account the statutory regulation of charities and the expectation that charity trustees are volunteers. They concluded that the common intention of the parties was that Mr MacLennan would act as a volunteer. The Employment Tribunal concluded that Mr MacLennan was not a worker for the purposes of the Employment Rights Act 1996 (ERA), and consequently it did not have jurisdiction to determine his claim. Mr MacLennan then appealed to the EAT.
The EAT decision
The EAT agreed with the Employment Tribunal’s analysis of worker status relating to the ERA. However, they concluded that the employment tribunal had failed to properly consider the worker status question in the context of the European Convention on Human Rights (ECHR). The EAT accepted that Mr MacLennan was a volunteer who was not entitled to remuneration. However, they went onto conclude that these points are not determinative, and that a broad brush approach should be adopted. The EAT concluded that other relevant factors include:
the type of role undertaken and level of responsibility;
the duties of the role;
the likelihood that the person will become aware of wrongdoing;
the importance of the person making disclosures of wrongdoing in the public interest;
the vulnerability of the person to retaliation for making a protected disclosure – including the extent to which livelihood or reputation might be at risk;
the availability of alternative routes to making disclosures of wrongdoing and any alternative protections; and
any other relevant distinction between the office holder and an employee and/or worker.
They went on to say: “There was a strong argument that being a charity trustee, President-Elect and/or President is akin to an occupational status. The nature of the role, responsibilities and regulatory regime applied to charity trustees is strongly suggestive of a status.”
Despite concluding that there was a strong argument in Mr MacLennan’s favour, the EAT did not reach a final conclusion, but instead remitted the decision to the Employment Tribunal to reach a final decision. We therefore still await a final determination of the question of whether charity trustees are protected by the whistleblowing legislation.
Conclusion
Whilst we don’t know for certain whether trustees are protected by the whistleblowing legislation, nor whether that protection could extend more generally to volunteers, charities should nevertheless proceed with care when they receive disclosures from trustees. It would be prudent to act in the same way as you would do when receiving a disclosure from an employee or worker.
It is important to remember that, if an employee or worker does make a disclosure, they are protected from suffering detriment and dismissal. It is also important to remember that an individual can make a disclosure to the Charity Commission, who can act on the information they receive.
If you have any questions on the above, or would like to find out more, please contact Harriet Broughton.