The Employment Appeal Tribunal heard an appeal in July from Nigel MacLennan, the former president-elect of the British Psychological Society, in a landmark tribunal which could extend whistleblowing protections to cover charity trustees.
MacLennan was expelled from the BPS in 2021 following contested allegations against him of persistent bullying, causing him 'profound damage to his reputation and career'. At an employment tribunal he unsuccessfully claimed that he should have been afforded whistleblowing protections after he allegedly uncovered 'serious concerns of corporate governance failings within the BPS, including potentially illegal practices'. The tribunal rejected his claim last year on the grounds that he was not protected by existing whistleblower legislation as he was not a worker of BPS.
Protection to whistleblowers in the UK, provided under the Public Interest Disclosure Act 1998, is currently afforded to employees, agency workers, members of LLPs and non-employee workers. Under the Act, if a worker makes a whistleblowing claim, they may be awarded uncapped compensation in the event that they suffer harm owing to their whistleblowing. Whistleblowing by workers is classed as a protected disclosure, meaning that any dismissal made as a result of it is deemed automatically unfair. Likewise, protections are also afforded to employees against being made subject to victimisation or detrimental treatment, like bullying, following their whistleblowing.
The current position in the UK is that charity trustees are classed as volunteers rather than workers under PIDA 1998 and as such do not receive any protections in the event that they blow the whistle on harmful practices.
MacLennan argues that he should have been afforded protection from reprisals following his whistleblowing because he entered into a contract with the BPS and was, by blowing the whistle on his concerns, fulfilling his legal obligations as a trustee. He further argues that he and other charity trustees should be likewise protected under Articles 10 and 14 of the European Convention on Human Rights, which cover freedom of expression and protection from discrimination.
The outcome of the Employment Appeal Tribunal Decision is yet to be released. However, if MacLennan succeeds, it may have a significant impact on how charity trustees engage with whistleblowing and incentivise them to come forward with their concerns. Sybille Raphael, legal director at whistleblowing charity Protect, said that trustees need to feel free to call out wrongdoing in their charities when they see it:
'If we want trustees to come forward, we need to ensure that they have a remedy if they suffer for speaking up.'
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