Do charity trustees have whistleblower protection?

But a recent case in which a charity trustee claimed entitlement to such protections—including ‘detriment’, defined as worsened circumstances or treatment following a disclosure—suggests the law in this area is not as clear-cut as originally thought.

In this briefing, associate Sam Lawn considers the details and impact of the case.

Dr MacLennan was a trustee and President-Elect of the British Psychological Society and contended that he was entitled to protection from whistleblowing detriment on two grounds:

1. that he was a ‘worker’ under the Employment Rights Act 1996; and
2. that he was ‘analogous to a worker’ by virtue of Articles 10 and 14 of the European Convention on Human Rights (ECHR) and that failure to confer whistleblowing protection would amount to an infringement of his human rights.

When the case was first heard, an Employment Tribunal considered that Dr MacLennan’s argument failed on both counts. The Tribunal’s decision was strongly influenced by the fact that his position as a trustee was unremunerated. Dr MacLennan appealed.

On the first point, the Employment Appeal Tribunal (EAT) agreed with the Tribunal’s decision that Dr MacLennan was not a worker principally because there was no intention to enter into a contractual relationship. They confirmed that, although he held considerable responsibilities in his role as trustee, there was no contractual relationship or intent to enter into one.

On the second point, however, the EAT’s view differed from the Employment Tribunal. They disagreed with the Tribunal’s approach to the interplay between the Employment Rights Act 1996 and the ECHR. 

Dr MacLennan argued that Article 10 and 14 of the ECHR gave him whistleblowing protection because his situation was analogous to a worker (as defined in section 230(3)(b) of the Employment Rights Act). He said that failure to provide that protection would be an unjustified infringement of his human rights. 

The EAT found that the Employment Tribunal had failed to apply a “broad brush” approach to this question and had unduly focused upon Dr MacLennan’s lack of remuneration.

They provided a list of further factors which should be considered when deciding whether the role of charity trustee was ‘analogous to a worker’ for whistleblowing purposes:

• the type of role undertaken and its level of responsibility
• the duties of the role
• the likelihood that the person will become aware of the wrongdoing
• the importance of the person making disclosures of wrongdoing in the public interest
• the vulnerability of the person to retaliation
• the availability of alternative routes to making disclosures, and
• any other relevant distinctions between the person and an employee or worker of the entity.

The case was remitted back to the Employment Tribunal to reconsider the issue, but the EAT gave a strong indication that in their view, charity trustees would be protected from whistleblowing detriment. 

The Employment Tribunal reconsidered Dr MacLennan’s case following the EAT’s guidance but still found that he was not entitled to whistleblower protection based on his status as a charity trustee.

The Employment Tribunal drew attention to the following crucial points as part of its analysis:

• Dr MacLennan’s status as a charity trustee meant that he was a volunteer, not a worker. It was Dr MacLennan’s role to oversee the charity, not to be subservient to it.
• A charity could not retaliate against a charity trustee by dismissing them. This means that Dr MacLennan could not suffer the same damage to reputation and livelihood that an employee could. Indeed, Dr MacLennan provided no evidence of any such damage.
• Dr MacLennan could have raised concerns with the charity regulator, the Charity Commission, which has statutory obligations to act on any wrongdoing reported to it.

In respect of the human rights argument, the Employment Tribunal found that the whistleblowing legislation was justified in excluding trustees from protection under Article 14 of the ECHR because there was a legitimate aim in avoiding conflicts of interests that may arise between a trustee and their charity. Again, trustees are not without recourse and can raise concerns to the Charity Commission.

It is somewhat surprising that the Employment Tribunal did not agree with the EAT’s strong indication that charity trustees would be protected from whistleblowing detriment. However, it is significant that both the government and the Charity Commission intervened to support the charity’s position when the case went back to the Tribunal.

Although this decision suggests that charity trustees will generally not be covered by whistleblowing protections, it should be noted that the remitted decision is a first instance decision and it is possible that a future tribunal may reach a different conclusion on different facts.  Given the guidance in this case, charities should not automatically assume that their trustees will not be entitled to whistleblowing protection simply because they are unpaid. Instead, the position could be much more complex where trustees may be considered “analogous” to workers, for example, where trustees could be particularly vulnerable as a result of making a disclosure (e.g. if speaking up could impact their career).

What is clear from this case is that trustees cannot claim the benefits of worker status where the parties did not intend to enter into a contractual relationship. The absence of remuneration to trustees is a significant factor in determining this and it remains the case that they will not be able to claim worker benefits such as the national minimum wage and paid holiday.