Landmark appeal puts whistleblowing protection back on the table for charity trustees
Image of Chris Milsom and Emma Darlow Stearn
Cloisters’ Chris Milsom and Emma Darlow Stearn, instructed by Oliver Spratt (Morrison Foerster), acted for the successful Claimant in a landmark appeal in the Employment Appeal Tribunal ("EAT") on whether charity trustees should be afforded whistleblowing protection.
The Claimant, Dr Nigel MacLennan, who was a trustee elected to the post of President-Elect for the Respondent, the British Psychological Society, brought a s.47B Employment Rights Act 1996 ("ERA") whistleblowing detriment claim against the Respondent. At first instance, the Employment Tribunal ("ET") declined jurisdiction to hear the claim, finding that the Claimant was at no stage a worker for the Respondent. The Claimant appealed to the EAT on four grounds.
Grounds 1 and 2 were dismissed. HHJ Tayler held that the ET was entitled to find that there was no intention to enter into a contractual relationship and thus the Claimant was not a "limb (b)" worker for the Respondent under s.230(3)(b) ERA.
The EAT, however, allowed Grounds 3 and 4 of the appeal, holding that:
The ET had failed to conduct the requisite broad-brush assessment when determining whether whistleblowing protection should extend to charity trustees to ensure compliance with the Claimant’s right to freedom of expression (under Article 10 read with Article 14 of the European Convention on Human Rights).
Workers can rely upon disclosures made to their eventual employer before employment has begun, and what matters for the purposes of whistleblowing protection is status by the time of detriment rather than at the time of disclosure.
The case has been remitted to the same tribunal to reconsider question (1) — which if answered in the affirmative, will afford the Claimant whistleblowing protection based on any protected disclosures made before the commencement of (as well as during or after) his employment.
The EAT recognised that whether charity trustees can avail themselves of whistleblowing protection is a question of ‘considerable public importance’ and invited the ET to ask the Secretary of State whether they wished to intervene.
It will be some time before this pivotal question is answered, but the asymmetry of a system where charity trustees are compelled to raise concerns about wrongdoing to comply with their statutory duties but are not protected by whistleblowing law when they do so, looks increasingly untenable.
The full judgment can be accessed here: Dr Nigel MacLennan v The British Psychological Society (Protect and the Charity Commission intervening) [2024] EAT 166.
