Employment Appeal Tribunal decision in MacLennan v The British Psychological Society

In a potentially significant development for English charity law, on 21 October the judgement of HHJ Tayler in MacLennan v The British Psychological Society [2023] EAT 166 was published, marking a possible shift in legal protections for charity trustees. The Employment Appeal Tribunal (EAT) ruling may lead the way to a broadening of the scope of whistleblowing protections under s.47B of the Employment Rights Act (ERA) 1996 to include charity trustees, in a change that may lead to far-reaching effects across the charitable sector.

Dr MacLennan was expelled from the BPS and had his position as trustee and President-Elect terminated in May 2021 following what he argued were 9 protected disclosures in relation to the running of the organisation. Bringing a claim for having suffered whistleblowing detriment under s.47B ERA 1996, MacLennan argued that trustees should be regarded as workers under employment law, and therefore offered the same whistleblowing protections against detriment as workers. 

The Employment Tribunal (ET) considered two issues at first instance.  Firstly, whether Dr MacLennan was a "worker" as defined under s.230(3)(b) ERA 1996 (and therefore entitled in principle to protections for whistleblowing that might have made the termination of his role unlawful), and secondly, applying the case of Gilham v Ministry of Justice (Protect intervening) [2019] ICR 1655, whether the European Convention on  Human Rights (ECHR) Articles 10 (right to freedom of expression) and 14 (prohibition of discrimination on any ground (including "other" status)) extended to trustees.  On both issues, the ET dismissed Dr MacLennan's claims.  The EAT heard Dr MacLennan's appeal of these decisions in July 2024. 

Three central issues were reviewed in the EAT's judgement:

Whether Dr MacLennan was a "worker" under s.230(b) ERA 1996

The EAT upheld the ET’s view that trustees are not “workers” under s.230(3)(b) ERA 1996, since there was no contractual relationship implied by the claimant’s election to the role of President-Elect.  Key to this finding was the ET's consideration of similar factors to those set out in Gilham v Ministry of Justice in determining whether an employer-employee relationship exists, such as the election of MacLennan to his role rather than him entering into a formal agreement, and the surrounding context (including a shared intention that Dr MacLennan would be a volunteer). The EAT concluded that there was no intention to enter into a contractual relationship.

Whether disclosures made to an "employer" prior to commencement of employment are protected

Adopting a purposive approach to the ERA 1996, the EAT made a novel ruling that detriments arising from disclosures made before employment began could be protected.  However, it specified that this protection does not extend to unsuccessful job applicants, differentiating cases where an employment relationship is likely to commence from situations involving prospective hires who never become employees.

Whether s.230 ERA 1996 read with Articles 10 and 14 ECHR serves to extend whistleblowing protections to charity trustees

The EAT ruled that the ET did not conduct the broad-brush assessment necessary to decide whether under Article 10 and 14 ECHR, there was an analogous situation between the claimant and employees/ workers, or whether by being a trustee, Dr MacLennan's role as President or President-Elect was of some other status,  exempt from ERA 1996 protections. Given the claimant’s responsibilities and the regulatory framework governing his role, the EAT highlighted the possibility that trustees as volunteers, despite being unpaid, could face risks similar to employees when reporting wrongdoing, warranting whistleblowing protections. The ET will be required to consider this at next instance.

The broader implications of this ruling

Charities should recognise that, if at next instance the ET determines that s.47B ERA 1996 extends protections to charity trustees,  charities will face greater potential liability in respect of their trustees. It would certainly increase the onus on charities to identify and properly manage whistleblowing-type disclosures.

Further, the EAT's ruling provides confirmation that, although whistleblowing protections do not apply to job applicants, employers should beware that employees can be protected from detriment resulting from whistleblowing before their term of employment commences.

While the EAT's judgement does not fully resolve the status of trustees under the ERA 1996, it sets a precedent likely to influence the next ET hearing on this case.  Consequently, MacLennan v The British Psychological Society may be far-reaching in its implications for trustees and other volunteers and the charities they serve.  Withers will provide further updates as the case develops.