Focus on…Whistleblowing for Charity Trustees
The recent decision of the Employment Appeal Tribunal in MacLennan v British Psychological Society is important for a couple of reasons.
First, it confirms that workers are protected from suffering detrimental treatment from their employer on account of disclosures made to that employer before the employment actually began. This is in line with previous case law having confirmed protected status for disclosures made after employment has ended. Second, it opens the door for charity trustees to be protected under whistleblowing legislation.
Whistleblower protection requires an individual to meet the definition of a ‘worker’ under section 203(3)(b) of the Employment Rights Act 1996 (ERA), or fall within a limited number of special cases under section 43K ERA. Trustees do not often satisfy the worker test because they are typically volunteers, providing their time and services without a contract, and without remuneration.
In Gilham v Ministry of Justice (2019), however, the Supreme Court ruled that whistleblower protection must give effect to Article 10 of the European Convention on Human Rights – the right to freedom of expression. This encompasses the right to blow the whistle, and the ECHR specifies that this right cannot be diminished due to holding a particular occupational status. Accordingly, the Court ruled that whistleblowing legislation must be interpreted so as to extend protection to roles that are analogous to that of a worker – in that case a district judge.
In MacLennan, the Tribunal initially concluded that the claimant’s role as trustee was not analogous to an employee or worker, largely due to the voluntary nature of the appointment and the lack of any express or implied contractual obligations. The Tribunal correctly found that there had been no intention to create a legal working relationship.
Nevertheless, the EAT allowed Mr MacLennan’s appeal, finding that the Tribunal had adopted too narrow an approach to the question of ‘analogous status’ as raised in Gilham. What was required was a more broad-brush approach, considering issues such as:
• The type of role undertaken and level of responsibility;
• The duties of the role;
• The likelihood that the person would become aware of wrongdoing;
• The importance of the person making disclosures of wrongdoing in the public interest; and
• The risk of retaliation for making a protected disclosure, including the extent to which the person’s livelihood or reputation might be at risk.
Several of these factors arise in the case of charity trustees, given that they owe fiduciary duties to their charity, and are subject to statutory obligations to disclose wrongdoing. Given this high level of responsibility and the wider importance of the role in society, it would be strange if trustees were not protected from adverse repercussions for reporting concerns or suspicions.
The case was therefore sent back to the Tribunal to reconsider Mr MacLennan’s eligibility for whistleblowing protection, with the EAT giving a strong steer that being a charity trustee was akin to occupational status.
Future Developments
More broadly, Parliament has been debating the need to extend and strengthen current whistleblower protections. MPs from all parties agree that the current legislation focuses to heavily on procedural questions of what constitutes a protected disclosure, and does not offer sufficient protection to whistleblowers potentially suffering significant financial and reputational damage.
Current proposals include:
- Expanding the definition of protected disclosures to include sexual harassment, which is addressed by the draft Employment Rights Bill. (Although note that existing Equality Act rules on ‘victimisation’ already protect workers from retaliation for raising any allegation of discrimination, including harassment).
- Introducing a “duty of candour” for public authorities, to improve transparency and accountability in the public sector; and
- Creating an independent ‘office of the whistleblower’, to whom protected disclosures may be reported.