How are charity trustee whistleblowing rights evolving – and what questions does this raise for charities?

The case of MacLennan v The British Psychological Society, which considered whether whistleblowing protections should extend to charity trustees, is due to return to the Employment Tribunal next week. In this article, we consider some of the key questions for charities in light of the evolving whistleblowing rights of trustees. 

Background

Many readers will be familiar with the background, but if you would like more detail please see our previous update on the MacLennan case, which we published following the Employment Appeal Tribunal (EAT) decision in October last year.

By way of summary, the Claimant in the case, Dr MacLennan, was a charity trustee elected to the role of President-Elect of the British Psychological Society. Dr MacLennan argued that he was a “worker” for the purposes of whistleblowing legislation, and therefore protected against being subjected to detriment on the grounds of making protected disclosures.

The Employment Tribunal, in its original decision, found that Dr MacLennan was a volunteer carrying out activities on a pro bono basis, and that there was no contractual relationship between the parties – and he was therefore not a “worker” protected under whistleblowing legislation. On appeal, however, the EAT concluded that the Employment Tribunal did not conduct the “broad brush” assessment necessary to properly take into account Dr MacLennan’s rights under the European Convention on Human Rights (ECHR). While the EAT agreed that Dr MacLennan was a volunteer who was not entitled to be paid, it found that these points were not determinative, and that other relevant factors should have been taken into account, such as the type of role undertaken and level of responsibility, the duties of the role, and the vulnerability of the person to retaliation for making a protected disclosure.

The EAT sent the case back to the Employment Tribunal to consider again whether Dr MacLennan was a “worker” protected under whistleblowing legislation. Clearly, this case raises a number of important questions and has potentially far-reaching ramifications for charities. The Employment Tribunal’s decision following the upcoming further hearing will be eagerly awaited.

Key questions for charities

One of the key questions for charities is how best to deal with potential whistleblowing disclosures made by trustees in light of this case. While we don’t yet know for certain that trustees are protected by whistleblowing legislation, charities should continue to proceed with care, and it would be prudent to act in much the same way as when receiving disclosures from employees. There will be practical considerations around the process for investigating such concerns and deciding who will be best placed to investigate. Charities may also need to consider whether whistleblowing policies should be amended to specifically cover trustees and other volunteers (if they don’t already).

Another important question for charities is whether, if trustees are protected by whistleblowing legislation, the protections may also extend to other volunteers. It is noteworthy that the relevant factors identified by the EAT in the MacLennan case for determining “worker” status for whistleblowing purposes included the type of role undertaken, the level of responsibility, and the duties of the role. Clearly, there are many volunteers carrying out very important roles, which are sometimes critical to a charity’s mission – could other volunteers, in particular those carrying out these sorts of “mission critical” roles, also be protected by whistleblowing legislation? 

Charities also need to consider the potential risk that these possible protections may be “weaponised” in board disputes or disputes between senior executives and trustees. Clearly, this has the potential to add an extra layer of complication – and litigation risk – to such disputes, which will need to be carefully managed. Charities should consider the additional potential risks they may face where such disputes arise, as well as taking appropriate steps to mitigate against such potential risks, where possible. 

A further question that arises for charities (unrelated to whistleblowing) is whether, if charity trustees and possibly other volunteers can be “workers” for whistleblowing purposes, they may be considered “workers” for the purposes of other employment rights – notably the right to be paid the National Minimum Wage and receive paid holiday. The answer to this question is perhaps a more straightforward “no”. The focus of the MacLennan case was purely on “worker” status for whistleblowing purposes, and it does not follow that, if charity trustees and possibly other volunteers are protected as “workers” under whistleblowing legislation, they are entitled to other employment rights enjoyed by “workers”.

If you would like to discuss any of the questions raised in this article, and how they may impact your charity, please contact Harriet Broughton or Damian Ward.