The topic of whistleblowing and worker status has spent a fair bit of time in the spotlight recently (certainly in the world of employment law, at least). In fact, we last wrote about this subject only a few months ago, when the Court of Appeal found that a volunteer coastguard was a worker and was therefore entitled to benefit from whistleblowing protection.
Since then, a new judgment has been passed down by the Employment Tribunal, adding further clarification to the court’s approach towards this area of the law. In this instance, the Tribunal determined (on reconsideration) that a charity trustee, Dr MacLennan, was not eligible to benefit from whistleblowing protection following him making (alleged) protected disclosures.
The case of MacLennan v the British Psychological Society (BPS) is not new, as this latest judgment follows Dr MacLennan’s third attempt to establish whistleblowing protection. The case was first heard in 2023 and looks set to continue its journey through the court system, as Dr MacLennan has appealed the Tribunal’s latest decision to the Employment Appeal Tribunal (EAT).
Cases involving whistleblowing and worker status often turn on specific facts, such as the nature of the role in question and whether the role is considered analogous with others in the business which do benefit from whistleblowing protection. As such, to understand the Tribunal’s decision it is necessary to look at basic facts of the case and the law which governs this area.
The Law on Whistleblowing
In order to benefit from whistleblowing protection an individual must be considered a worker (i.e. an individual working under a contract to perform services personally) or an employee under the Employment Rights Act 1996 (the ‘Act’). In 2019 the legal position was clarified when the Supreme Court found, in case of Gilham v Ministry of Justice, that whistleblowing protection can be extended to an office holder who does not have an express or implied contract. The Supreme Court held that, even though judicial office holders (a judge, in this case) are not workers under the Act, excluding them from protection would infringe upon their rights under the European Convention on Human Rights Articles 10 (freedom of expression) and 14 (the right not to be discriminated against on various grounds, which include “other status”). This is generally known as the “Gilham extension” of the definition of worker under the Act.
The Facts of the case
In the present case, Dr MacLennan was a charity trustee who had been elected to the role of President-Elect in May 2020. He claimed to have made some protected disclosures in June that year, and a further nine between July and December 2020. The relationship between Dr MacLennan and the BPS soured and, following an investigation into bullying allegations, he was expelled from membership in May 2021. The consequence of this was the termination of his role as trustee, as well as President-Elect. He brought a claim for whistleblowing detriment in the Employment Tribunal, arguing that the BPS had subjected him to detriment for raising protected disclosures. Importantly, for Dr MacLennan’s claim to succeed, he had to first establish that his role was entitled to receive the same whistleblowing protection as employees and workers.
The Outcome
At first instance, the Tribunal found that Dr MacLennan was not a worker of the BPS as he was an unpaid volunteer charity trustee. However, Dr MacLennan successfully appealed to the EAT the following year. Although the EAT agreed that there was no contract, it found that the Tribunal had not properly applied the test established in Gilham and had focussed too narrowly on the fact that Dr MacLennan was unpaid. The EAT noted (via HHJ Tayler) that, “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”. It therefore sent the case back to the Tribunal to reconsider whether being a charity trustee, President-Elect or President was akin to “other status”.
The Tribunal found, on reconsideration, that Dr MacLennan’s role was not analogous to that of an employee or worker. In reaching this decision, the Tribunal focussed on the fact that a charity trustee is effectively an unpaid volunteer who is not subordinate to the charity of which they are a trustee. It highlighted that this was an important distinction as the role of a trustee is focussed on governance and oversight which is not analogous “…to an employee or worker who is paid by their employer and subordinate to them”. Other relevant factors included that a trustee could raise concerns directly to the Charity Commission which has statutory obligations to review and investigate disclosures of wrongdoing and fact that any retaliation against Dr MacLennan could not include the “nuclear option” of dismissal.
The story did not end there though, as the Tribunal found that Dr MacLennan had “other status” for the purposes of Article 14 of the ECHR and was treated less favourably by virtue of not being entitled to bring a whistleblowing claim under the Act. However, despite this, the Tribunal found that this difference in treatment was objectively justified as a proportionate means of achieving a legitimate aim. It noted that there is a legitimate aim in avoiding “the potential conflict of interest between a charity trustee’s responsibilities and bringing a whistleblowing claim which might result in significant financial damage to the charity”.
As noted above, Dr MacLennan has appealed this decision. It therefore remains to be seen whether the Tribunal’s latest position remains the last word on the matter.
What does this mean?
Unless the decision is subsequently overturned on appeal, this latest decision should be welcome news for businesses as it means that charity trustees are not eligible to benefit from whistleblowing protection. This follows the same approach taken by the Court of Appeal in the case of Sullivan v Isle of Wight Council last year, which confirmed that job applicants cannot pursue whistleblowing claims.
However, in view of HHJ Tayler’s comments in the 2024 EAT judgment, employers would be wise not to apply too narrow a lens to whistleblowing and worker status issues yet, particularly as recent caselaw has confirmed that the following groups are entitled to protection:
- Trainee curates (Green v Lichfield Diocesan Board of Finance, 2023);
- Foster carers (Oni v London Borough of Waltham Forest, 2025); and
- Volunteer coastguards (Maritime and Coastguard Agency v Groom, 2026).
It therefore appears that, whilst the courts are not opening the metaphorical floodgates, they are increasingly interpreting the definition of worker more widely to include groups of individuals who, historically, have not been entitled to protection.
As this area of the law is changing at pace, seemingly in favour of individuals, we would encourage employers to regularly audit their whistleblowing policies and procedures to ensure they are in line with the latest legal position and best practice.