The Employment Appeal Tribunal (EAT) has reversed a tribunal decision that a charity trustee was unable to bring a whistleblowing claim. It was originally ruled that, because the trustee did not have a contract and acted on a voluntary basis, he was not a “worker” for the purposes of the Employment Rights Act 1996 (ERA) and so was not protected.
The trustee in question, who had been elected to the position of President-Elect of the British Psychology Society, had raised concerns about the running of the Society after which his relationship with other members began to decline. His position with the Society, which is a charity, was subsequently terminated and he was expelled. He brought claims of unlawful detriments as a result of whistleblowing. The Employment Tribunal (ET) dismissed his case, finding that he did not meet the legal definition of a “worker” and was not in a situation analogous to a worker.
The Claimant appealed on the basis that, under Article 10 (freedom of expression) and Article 14 (non-discrimination) of the European Convention on Human Rights (ECHR), he should be protected, even though not strictly a “worker”, as trustees were in an analogous situation or held another status that required protection.
On appeal, the EAT agreed that the Claimant did not have a contract as there had been no intention to enter a contractual relationship. This was reinforced by the fact that he was not paid (other than compensation for loss of actual earnings) and his duties were limited. The Claimant was therefore not a “worker” as currently defined in the ERA.
However, the EAT concluded that a charity trustee could have an occupational status due to the nature of the role and regulatory obligations. This could justify the extension of the protection against whistleblowing detriment under the ERA as it is a protected “other status” under Article 14 of the ECHR.
The case has been referred back to the ET for further consideration in the light of this finding. The EAT suggested the need for a broad approach when determining the status of a trustee, considering factors such as their responsibilities, the likelihood of them encountering wrongdoing, the importance of their being able to raise concerns and their vulnerability to detriments.
MacLennan v. BPS highlights that charity trustees are, in most cases, likely to have protection in relation to whistleblowing.
