Whistleblowing protection for Trustees AND for workers that blow the whistle before employment begins!

In the case of MacLennan v The British Psychological Society, the Claimant, a charity trustee, was elected to the position of President-Elect, which also required the Claimant to sit on the board of trustees (taking up approximately 16 days per year). The Claimant had concerns about the way the British Psychological Society operated and therefore made a number of complaints. After relations deteriorated, the Claimant’s position as a trustee and the role of President- Elect was terminated.

Claim – Whistleblowing detriment.

ET Decision – The claim was dismissed because the Claimant did not meet the definition of a worker under the Employment Rights Act 1996 (ERA) because there was no contract - the role was voluntary. The ET considered whether the Claimant’s position as an 'office holder' would amount to a contract in accordance with the case, Gilham v Ministry of Justice (Protect intervening) [2019]. However, the ET concluded that the parties had not intended to enter into a contractual relationship. The ET also considered whistleblowing protection when articles 10 and 14 of the European Convention of Human Rights (ECHR) (right to freedom of expression and the prohibition of discrimination on any ground, including "other status") apply. It considered whether persons of 'other status' in roles 'analogous' to employees or workers should have whistleblowing protection. The ET concluded that the Claimant’s position was not 'analogous' to employees or workers as he was acting purely in a voluntary capacity and was not remunerated.

EAT Decision – The EAT agreed with the ET about the contract and the fact the Claimant was not worker as defined in the ERA. However, when considering ECHR rights, the EAT held that the ET had focussed too much on the voluntary nature of the position and the lack of remuneration, rather than the relevant circumstances. In considering whether there was an 'analogous' situation, the ET should have considered factors such as:

• the role’s responsibilities and duties;
• the importance of the person making disclosures of wrongdoing in the public interest; and
• the likelihood of discovering wrongdoings in that sort of role.

The EAT also confirmed that workers are protected from detriment for disclosures made before employment beings. Although the EAT did clarify that it did not extend to job applicants.?

The case was sent back to the tribunal to reconsider the Claimant’s eligibility for whistleblowing protection.

Key takeaways

• Trustees may have the ability to pursue whistleblowing detriment claims and therefore disclosures by Trustees should be taken seriously and considered in line with policies and procedures.
• Protection against detriment may also apply to disclosures made to “employers” before employment begins.

For further information or assistance please get in touch with a member of our Employment, Pensions & Immigration team.

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