In a recent decision, the Employment Appeal Tribunal (EAT) has examined the application of whistleblowing protection to charity trustees. How does whistleblowing protection work in practice? Whistleblowing is where an employee, worker, or in some cases other categories of individual, makes a 'qualifying disclosure' of wrongdoing at work, which they reasonably believe to be in the public interest. If the person is then subject to detriment or is dismissed because they have blown the whistle, they will be protected in law.  When available, whistleblowing protections play a crucial role in safeguarding individuals who report misconduct or serious wrongdoing. In practice, whistleblowing protections are a shield, allowing individuals to report issues in good faith without risking their roles or reputations. Whistleblowing protection is fundamental to workplace transparency and accountability. Tribunal decision and appeal In MacLennan v British Psychological Society, the claimant, a longstanding member of the British Psychological Society (Charity), was appointed as trustee and President-Elect of the Charity. He raised concerns about the manner in which the Charity was being run. Relations between the claimant and the Charity became strained, and a grievance was made against the claimant. Following an investigation into the grievance, the Charity removed the claimant as a trustee (and therefore also as President-Elect). The claimant argued that the concerns he had raised had led to his trusteeship being terminated in retaliation. He claimed that he should benefit from whistleblowing protection in law. The Employment Tribunal dismissed his claim, holding that the claimant did not qualify as a "worker" in employment law, because he had not entered into a contract with the Charity. The Tribunal found that the claimant had accepted that he was a volunteer carrying out activities on a pro-bono basis, and that he had not at any stage intended to create a legal working relationship with the Charity. On this basis the Employment Tribunal found that the claimant could not benefit from whistleblowing protection in law. The Tribunal also rejected the claimant's argument that the legal definition of "worker" status should be interpreted purposively in order to avoid a breach of Article 14 of the European Convention on Human Rights (ECHR) (prohibition of discrimination). The Tribunal found that the claimant was not in an 'analogous situation' to a worker. The claimant appealed, arguing that his rights under Article 10 (freedom of expression) and Article 14 of the ECHR warranted the extension of whistleblowing protections to his role. He asserted that his responsibilities as a charity trustee with oversight and governance duties placed him in a position closely analogous to a worker under the law. The Charity Commission and the whistleblowing charity Protect also intervened in the appeal to highlight the wider ramifications of the case for the charity sector. In its submissions, Protect emphasised that charity trustees can suffer reputational damage similar to workers, which can deter them from blowing the whistle. Protect argued that charity trustees should be treated as workers for the purposes of whistleblowing protection. Case remitted to Employment Tribunal The EAT agreed with the Employment Tribunal's initial finding that the claimant did not have a contractual relationship and thus could not be classified as a worker. However, it found that the Tribunal had not sufficiently considered whether the claimant’s role as a charity trustee, given its regulatory and governance context, might align more closely with that of a worker when assessing his rights under Article 10 and Article 14 of the ECHR. While whistleblowing protections traditionally apply to paid workers, the EAT therefore remitted the case to the Tribunal in order to consider the specific contextual factors unique to charity trustees, particularly where governance responsibilities intersect with the public interest, such as: The type of responsibilities held by a trustee in a governance role The likelihood that a trustee may encounter and disclose wrongdoing in the public interest The risk of reputational or other detriment if retaliated against The broader regulatory and governance framework that supports transparency within charities The EAT also pointed out that the Tribunal did not fully assess whether a charity trustee’s role might constitute an 'occupational status', which could potentially align with protections under the ECHR. The EAT's remittance to the Employment Tribunal means there is no final determination on the applicability of whistleblowing protections to a charity's trustees at this stage, but the position should be clarified once the Employment Tribunal has re-considered the issues. Depending on the particular circumstances, the EAT's decision could have significant implications for some charities and their trustees, including in the context of the governance issues which may arise where a charity wishes to remove a trustee eg in the context of a governance dispute. Learning points for charities This case highlights that, while the role of trustee does not typically meet the statutory worker definition, the specific duties and regulatory responsibilities of charity trustees may present unique considerations that warrant closer legal examination. It also highlights the potentially very damaging impact of governance issues within charities and the importance good governance plays in mitigating the risk of such issues arising, including a clear and fit for purpose constitutional framework, a comprehensive range of policies and processes and a clear understanding of the role of charity trustees. The EAT also suggested that the government might consider intervening in future proceedings, particularly given the public interest implications of the case and the potential for broader policy impact. Given that the case has been remitted to the Employment Tribunal in order to clarify these points, we will continue to report on developments. For more information or advice, please contact Kathy Halliday in our Employment team on 0121 227 3711, or complete the form below. Get in Touch First name(*) Please enter your first name. 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