The charity sector may be poised for a disruption following the Employment Appeal Tribunal’s (EAT) judgment in a case relating to the British Psychological Society. In this case, the EAT suggested that “the role of a charity trustee is akin to an occupational status”. This could be a landmark ruling that could significantly elevate the status of a charity trustee from a “volunteer” to a “worker”, providing substantial added legal protection for charity trustees.
MacLennan v The British Psychological Society and others
Facts of the case
Dr Nigel MacLennan was a charity trustee, elected to the role of President-Elect of the British Psychological Society (Charity). He had reported governance failings within the Charity to the Charity Commission as a whistleblower and was subsequently subjected to a disciplinary process and expelled from the Charity. He contended that he was a worker, and so he should be protected against being subject to detriment on the grounds of making a protected disclosure under section 47(B) Employment Rights Act 1996 (ERA). This is a protection which he wouldn’t have had as a volunteer.
Employment Tribunal’s decision
In 2023, the Employment Tribunal (ET) ruled that Dr MacLennan was not a worker at the Charity and so the ET did not have jurisdiction to hear his claims of detriment for making protected disclosures. The ET’s decision was largely based on its findings of his position as a trustee being unpaid, and him not having an employment contract. The ET decided that he did not qualify for protection as a whistleblower, and so they had no jurisdiction to hear his claim.
Dr MacLennan argued that he should be treated as a worker and protected from detriment on the grounds of making a protected disclosure. He relied on his rights under the European Convention of Human Rights, particularly the right to freedom of expression, which he argued was breached by his exclusion from whistleblowing protection.
Employment Appeal Tribunal’s decision
On appeal to the EAT, the Judge ruled in favour of Dr MacLennan, stating that although the lack of remuneration and Dr MacLennan’s status as a volunteer were relevant factors, they were not determinative. Other relevant factors included the type of role undertaken and level of responsibility, the likelihood that the person will become aware of wrongdoing, and the importance of the person making disclosures of wrongdoing in the public interest, and the likelihood that the person will become aware of wrongdoing. The “broad-brush approach” adopted by caselaw requires consideration of the relevant surrounding circumstances, and the ET’s narrow focus on Dr MacLennan’s lack of renumeration and status as a volunteer were criticised.
The EAT concluded that trustees, although unpaid, hold significant responsibilities within charities and that “there was a strong argument that being a charity trustee, President-Elect and/or President is akin to an occupational status”, given the nature of the role and regulatory regime. As a result, the EAT decided to return the case to the tribunal to consider all the relevant circumstances surrounding Dr MacLennan’s role and whether he ought to be able to have protection for having blown the whistle.
Current legislation
Under current legislation, protection for those who make protected disclosures is provided for workers under section 47(B) ERA. The term “workers” includes employees but excludes volunteers and self-employed contractors. Workers have specific legislative protection whereas there is limited protection for volunteers under legislation. Specifically, workers are entitled to, amongst other things (such as the National Minimum Wage and holiday pay), protection against discrimination and protection for whistleblowing.
In September 2019, the Charity Commission published a report on whistleblowing disclosures and widened its definition of a whistleblower to include charity volunteers. The Commission recognised that “in other respects they face many of the personal challenges and risks experienced by workers and therefore need the same sort of engagement from us.”
Government manifesto and legislative changes
As part of the Labour Government’s manifesto, the Plan to Make Work Pay report detailed the move towards a “simpler two-part framework for employment status” that differentiates between workers and the genuinely self-employed, abolishing the three-tier system for employment status (which currently classifies people as employees, self-employed or workers). Following the Uber v Aslam Supreme Court ruling in 2021, there looks to be an appetite to increase the legal protection of various groups of individuals by categorising them as workers. Additionally, the Charity Commission’s report mentioned above makes clear that the Commission is prepared to recognise charity trustees as workers, particularly to the extent of them being protected in the event of in whistleblowing.
The Birketts view
The case has been sent back to the ET for further consideration and could prove to be a landmark case if it results in charity trustees being recognised as having a status akin to that of workers, rather than volunteers, for the purposes of whistleblowing protection.
If the ruling is then used by volunteers seeking increased protection in other areas, it could be particularly challenging for charities. Discrimination claims and claims for detriment for having blown the whistle are particularly costly; compensation for these claims is uncapped and can be subject to an additional injury to feelings award. Claims also bring the risk of reputational damage which could be very damaging in the charity sector.
We would strongly recommend that charities take time to understand their responsibilities and ensure they take anyone ‘blowing the whistle’ seriously. A fair and reasonable investigation should be undertaken once the whistle is blown, and care should be taken not to disregard charity trustees’ concerns or treat them less well for having raised concerns. A written whistleblowing policy can be useful to formalise the process, and Birketts’ Employment Team would be pleased to assist with this.
Care should also be taken to ensure that charity trustees (whilst not currently directly protected) are not discriminated against, and that any allegations of discrimination are dealt with swiftly and fairly. We would strongly recommend that charity trustees stay on top of training on equality, discrimination and inclusion issues, as this can assist in defending any potential discrimination claims against the charity more generally. Please get in touch with any member of our Employment Team for further information or advice.
The content of this article is for general information only. It is not, and should not be taken as, legal advice. If you require any further information in relation to this article please contact the author in the first instance. Law covered as at October 2024.