Whistleblowing protection ordinarily only extends to workers. In the NHS it also extends to job applicants. The usual definition of worker is extended in relation to the whistleblowing detriment provisions in the Employment Rights Act 1996 (“ERA 1996”) to include a number of individuals who would not ordinarily be covered such as, for example, police officers, agency workers and self-employed NHS doctors. Office holders are not treated as workers even under this extended definition under ERA 1996.
However, in the case of Gilham v Ministry of Justice [2019] UKSC 44 the Supreme Court held that a district judge, who was not a worker, was entitled to whistleblower protection pursuant to the European Convention on Human Rights (“ECHR”), thereby extending protection to judicial office holders. More recently in the case of MacLennan v British Psychological Society [2024] EAT 166, where both Protect, the UK’s leading whistleblowing charity, and the Charity Commission were interveners, the Employment Appeal Tribunal (“EAT”) has explored the possibility of protection being further extended to charity trustees.
The case could have significant implications for schools and multi academy trusts as it may mean that governors and trustees, who are not workers but unpaid volunteers, may be protected if they report wrongdoing.
Background
Dr Nigel MacLennan, a psychologist, was a charity trustee who was elected to the role of President-Elect of the British Psychological Society (“the Society”). Dr MacLennan had concerns about how the Society was run and as a result he campaigned to become President-Elect in 2020 to address these concerns.
Shortly after stepping into his role as President-Elect, he made a number of disclosures about the alleged mismanagement of the Society. An independent investigation was conducted by a Barrister into these concerns. In the meantime, the relationship between the Society and Dr MacLennan had broken down to the extent that he was expelled from membership of the Society. This also served to terminate his role as Trustee and President-Elect. Dr McLennan brought an employment tribunal claim claiming he had been subjected to detriment for blowing the whistle.
Employment Tribunal (“ET”): Claim dismissed
The preliminary issue for the ET to determine before the claim could proceed was whether Dr MacLennan was a worker or ought to have been treated like one to be protected as a whistleblower. The ET ruled that Dr MacLennan was neither a worker nor in a situation analogous to a worker. The ET concluded that it had no jurisdiction to hear his claim.
Employment Appeal Tribunal (“EAT”): Appeal succeeds
Dr MacLennan appealed to the EAT.
The EAT upheld the grounds of appeal based on Articles 10 and 14 of the ECHR (per Gilham), finding that the employment tribunal had erred in holding that Dr MacLennan was precluded from bringing the detriment claim. The EAT found that although the ET had considered the guidance set out in Gilham, it focused almost entirely on the lack of remuneration and the linked fact that Dr MacLennan was a volunteer to conclude that he did not qualify for protection. In considering whether there were analogous circumstances with employees and workers, the relevant factors were likely also to include:
- 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.
- 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.
- Any other relevant distinction between the office holder and an employee or worker.
- Whether there was a reasonable justification for excluding someone in Dr MacLennan’s position from the protection enjoyed by other workers and employees.
The EAT found that there was a strong argument that being a charity trustee was akin to an occupational status and remitted the matter back to the ET for further consideration. The Secretary of State has been invited to intervene in the remitted proceedings as a matter of public policy.
Key Takeaways
This is another case that demonstrates that simply because someone is not obviously a worker or employee, it does not automatically follow that they are not covered by whistleblowing protections. Cases are fact specific and will be assessed on a case-by-case basis.
Charities, schools and multi academy trusts should be aware that the EAT’s decision highlights that whistleblowing protections can in some circumstances extend to office holders including governors and trustees. There are a number of public policy reasons why extending such protection is necessary. Elizabeth Gardiner, Chief Executive of Protect, notes that charity trustees play an important role in detecting and deterring any wrongdoings such as fraud, safeguarding issues and mismanagement, emphasising that this ruling will give more trustees the confidence and legal protection to call out any wrongdoing when they see it.
Ms Gardiner stresses the importance that legislation on whistleblowing protections should be updated to extend to those who currently sit outside of it. See for example our case briefing on Sullivan v Isle of Wight Council where the Court of Appeal concerning job applicants.
Charities, schools and trustees should be alert to any wrongdoing reported by governors, trustees, volunteers or anyone else who is not a worker or employee. They should have adequate policies and procedures for dealing with such concerns. Any allegation of wrongdoing should be properly investigated. Where allegations are raised by a trustee or governor this will often mean commissioning an independent investigation by an external third party. It is important that any such process is properly informed and managed as there are a number of complexities involved in investigations not least confidentiality, data protection, safeguarding and legal professional privilege.
For advice on any of the issues discussed in this case update, or any other employment or HR related matter for schools, please contact Winckworth Sherwood’s dedicated Schools HR helpdesk on SchoolsHR@wslaw.co.uk or 0345 026 8690.
For assistance with an independent investigation please contact our dedicated Schools Investigations team on schoolsinvestigations@wslaw.co.uk.