Overview
In a significant recent case, Dr. Nigel MacLennan v The British Psychological Society ([2024] EAT 166), the Employment Appeal Tribunal (EAT) examined whether a charity trustee, in this case, Dr. Nigel MacLennan as President-Elect of the British Psychological Society (BPS), should be considered a "worker" under the Employment Rights Act 1996 (ERA). This classification would entitle him to protection from detrimental treatment following whistleblowing disclosures. Dr. MacLennan claimed he was subjected to detriment, including expulsion, due to making protected disclosures about issues within the BPS.
Case Background
Dr. MacLennan was elected as the President-Elect of the BPS, a role involving governance and leadership duties but traditionally considered a voluntary position under charity law. His election aimed to address governance concerns, and shortly after assuming his role, he made several protected disclosures regarding alleged mismanagement within the Society.
As the relationship between Dr. MacLennan and the BPS’s senior management team (SMT) became strained, he faced a formal grievance and, eventually, expulsion from the BPS. He argued that these actions were retaliatory and connected to his whistleblowing disclosures.
Key Legal Questions
The case raised several crucial legal questions:
- Is a Charity Trustee a "Worker"? Dr. MacLennan argued that his role, though traditionally voluntary, involved a personal commitment to perform duties similar to those of a worker under ERA.
- Application of Whistleblowing Protections to Trustees: The core of the case questioned whether whistleblowing protections could extend to trustees, who typically hold non-contractual, voluntary positions.
- Compatibility with Human Rights Legislation: The EAT was tasked with determining whether the right to whistleblowing protection should apply to charity trustees under Article 10 of the European Convention on Human Rights (freedom of expression) combined with Article 14 (protection from discrimination).
Tribunal Findings
The EAT’s findings included:
- Worker Status Determination: The EAT found that Dr. MacLennan’s role as a trustee did not constitute a worker relationship with the BPS. Although he held significant responsibilities, the tribunal noted there was no contractual relationship or intent to enter one.
- Human Rights Considerations: The EAT examined whether Article 10 and Article 14 provided grounds for whistleblowing protection. It was noted that trustees could face unique forms of detriment and might not be fully covered by ERA protections. The EAT held that the first-instance tribunal failed to adopt the correct approach in determining whether the claimant’s status as a trustee was sufficiently analogous to that of an employee or worker, such that the relevant whistleblowing protections should be extended to the claimant. The tribunal had focused too narrowly on the absence of payment, but was required to take a broad-brush approach, considering all relevant circumstances.
Implications for Trade Union Representatives and Members
- Precedent on Trustee Protections: This decision limits the potential for charity trustees to claim worker protections under the ERA for whistleblowing. However, it emphasises the importance of clearly defined roles and protections for individuals holding governance responsibilities in charitable organisations.
- Human Rights and Whistleblowing Protections: The EAT’s analysis on the intersection of employment rights and human rights opens further discussions about extending whistleblowing protections to non-contractual officeholders, especially in cases where governance roles intersect with public interest concerns. The EAT has also made clear that, in considering whether a non-employee/worker is in an analogous position to an employee/worker (such that relevant protections should be extended to them in accordance with the European Convention), it must consider all the circumstances, not just remuneration. This is a useful authority for claimants in non-remunerated roles whose position otherwise shares common features with that of an employee/worker; the judgment makes clear that the question of whether or not such claimants are entitled to rely on statutory rights expressly limited to employees/workers or not depends on far more than whether they are paid. The EAT further confirmed that workers are protected against detriments imposed for making protected disclosures prior to the commencement of employment (although protection would not apply to job applicants who never become employees). Whilst this was a minor issue in the case, it is nevertheless a welcome statement as to a previously unresolved point of law.
- Union Advocacy for Legislative Reform: Trade unions may consider advocating for expanded whistleblowing protections for trustees and other non-contractual officeholders. Legislative reforms could address the gaps that currently leave certain categories of workers unprotected from retaliatory actions after raising serious concerns.
Conclusion
The Dr. MacLennan v BPS case underscores the complexities surrounding worker status and whistleblowing protections for charity trustees. While the EAT ultimately ruled against extending these protections, the case sets the stage for ongoing debate and potential future reform in employment and charity governance law. The judgment also makes clear that judges must consider more than remuneration in determining whether a claimant is in a position analogous to an employee/worker, a principle which ought to make it easier for claimants to establish such a status.
