In the recent Employment Appeal Tribunal (EAT) case, MacLennan v British Psychological Society (Protect and anor intervening), important legal questions emerged about the rights of charity trustees in bringing whistleblowing claims.

For the purposes of UK employment law, there are three categories of employment status: employee, worker, and self-employed. On the one hand, employees benefit from the full suite of UK statutory employment protections (including the right not to be unfairly dismissed), whereas the genuinely self-employed have limited statutory employment rights.  “Worker” is an intermediate category of employment status. A worker has more employment rights than a self-employed individual, but fewer rights than an employee.

Workers do benefit from whistleblowing protection and are protected from being subjected to any detriment on the ground that they have made a protected disclosure. A wider statutory definition of "worker" applies for these purposes and can include individuals who would not otherwise be regarded as either workers or employees. 

Case law has established that whistleblowing protection can also apply to individuals who do not fall within the applicable statutory definition of “worker”. Persons of “other status” who are not employees or workers are nevertheless entitled to whistleblowing protection if they are in positions which are “analogous” to employees or workers, unless leaving them without protection would be justified.

In this case, the EAT confirmed that a charity trustee could potentially bring a whistleblowing claim even though he was a volunteer and was therefore not a “worker”. This ruling could mark a significant shift for individuals in similar volunteer roles, especially in charities where transparency and accountability are paramount. 

Background to the case

MacLennan, the claimant, was a charity trustee of the British Psychological Society (“BPS”). He raised concerns about management practices, which led to his removal as a trustee and expulsion from BPS. He brought a whistleblowing detriment claim under section 47B of the Employment Rights Act 1996. 

At first instance, the employment tribunal dismissed the claimant’s claim on the basis that, as an unpaid volunteer, he was neither a worker nor in a position analogous to that of a worker.

On appeal, the EAT confirmed that the claimant did not meet the strict legal definition of a “worker” due to the absence of a contract between the claimant and BPS. His voluntary role strongly indicated that there was no intent to form a contractual relationship. 

However, the EAT disagreed with the tribunal’s reasoning as to why the claimant’s role as trustee was not analogous to that of a worker. Specifically, the EAT thought the tribunal fell into error by focusing almost entirely on lack of remuneration and the linked fact that the claimant was a volunteer. The EAT held that, while these were relevant factors, these were not determinative.  

Key factors considered by the EAT

The EAT highlighted several factors that tribunals should weigh when assessing whether a charity trustee (and any other individual who is not a worker) might be in an analogous position to a worker for whistleblowing purposes: 

• Nature and responsibility of the role: Trustees hold a significant role, often with duties that impact the organisation’s integrity and accountability. 
• Access to sensitive information: Due to their position, trustees are likely to become aware of potential wrongdoing within the organisation. 
• Public interest: There is a strong public interest in allowing trustees to report organisational misconduct without fear of reprisal. 
• Potential for retaliation: Trustees, like workers, may face risks to their livelihood, reputation, or future opportunities if they disclose sensitive information. 

The EAT remitted the case to the tribunal on the basis that it did not adequately consider the relevant circumstances and conduct the broad-brush assessment necessary to decide whether there was an ‘analogous situation’ between the claimant’s position of trustee and that of a worker. The EAT highlighted that there is a “strong argument” that the role of a charity trustee is “akin to an occupational status” such that it can be compared to those who already enjoy whistleblowing protection.

This case highlights an important reminder that individuals who are not employees or workers may nevertheless be entitled to benefit from whistleblowing protection. It remains to be seen how the employment tribunal approaches the remitted issues in this case, and what conclusion it reaches in respect of the claimant’s entitlement to whistleblowing protection once the correct legal analysis has been undertaken. This development will have a material impact on charities given the increased focus on improving governance in the sector by regulators and the media.

At Burness Paull, our team of employment and charity law experts regularly advise on the requirements for charities and trustees in this area, so if you would like guidance, please do not hesitate to contact us.

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