David Leach and Brianna Hall provide an update on a recent case from the Employment Appeals Tribunal, in which a charity trustee was not prevented from bringing a whistleblowing claim.
Under section 47(B) Employment Rights Act, workers have legal protection from being subject to a detriment or dismissed because they have made specific disclosures of wrongdoing (whistleblowers).
Until this case, the term ‘worker’ included all individuals paid for their service to the organisation but excluded volunteers and self-employed contractors.
Case background
During his time as a member of the BPS, MacLennan raised concerns about how the organisation was run, which led to him running to be and then elected as president-elect in May 2020.
On 13 separate occasions between May 2020 and December 2020 MacLennan raised concerns about alleged wrongdoing in the way the charity operated.
In May 2021, MacLennan was expelled from the charity amid allegations of ‘persistent bullying’. He submitted a claim to the Employment Tribunal (ET) arguing that his expulsion was because he was a whistleblower.
In 2023, the tribunal found that MacLennan was not entitled to claim whistleblowing protections because he was not a ‘worker’ of the BPS as defined by S.230(3)(b) of the Employment Rights Act 1996.
In reaching its decision, the ET considered the case of Gilham v Ministry of Justice, 2019 ICR 1655, in which the Supreme Court held that it would be in breach of Articles 10 (freedom of expression) and 14 (prohibition of discrimination) of the European Convention on Human Rights (ECHR) to deny whistleblowing protection.
However, the ET determined that unlike in Gilham, the Claimant in this case was not in a situation analogous to a worker.
In particular, the ET determined that his voluntary and unpaid position meant that the protection from treatment on the grounds of ‘some other status’ could not apply.
MacLennan’s claim was dismissed and he subsequently appealed.
Issues for the Employment Appeals Tribunal (EAT)
The EAT considered whether s.230(3)(b) could be read purposively to include MacLennan’s rights under Article 14 of the ECHR (prohibition of discrimination on any ground, including ‘other status’) and Article 10 (freedom of expression).
The EAT findings
The EAT agreed that the trustee, MacLennan, did not fall within the strict definition of ‘worker’ because he did not have an employment contract or anything similar with BPS.
However, the EAT found that the tribunal should have taken a ‘broad-brush’ approach.The lack of renumeration and the fact that the trustee was a volunteer were relevant factors, but they were not determinative.
A ‘broad-brush’ approach required other factors to be considered, for example, the likelihood that the person will become aware of wrongdoing and the importance of the person making disclosures of wrongdoing in the public interest.
In reviewing other factors, the EAT considered that there was a strong argument that, due to the nature of the role, responsibilities and regulatory regime, a charity trustee is akin to an occupational status.
On this basis the EAT considered that the Claimant’s position as a charity trustee could result in analogous situation of that of an employee or worker of the organisation. Its consideration involved:
- The manner of engagement;
- The source and character of the rules governing the services provided;
- The overall context; and
- Any other relevant factors (such as being paid or lack of being paid)
What’s next?
The case has been remitted to the tribunal to conduct a ‘broad brush’ approach in its consideration of if MacLennan is capable of being afforded the status of whistleblower as well as the possibility of the justification of any such less favourable treatment.
Our thoughts
If charities and voluntary organisations rely on volunteers to provide strategic direction and operational support, then we would argue that those volunteers should have protection against detriment if they raise concerns about the manner in which the charity is being run.
In fact, it is an anomaly that trustees and volunteers have not already been afforded that protection as there is clearly a public interest in raising concerns about wrongdoing in the charity sector.
This is not the last of this debate, trustees currently have limited options for how to make disclosures in respect potential wrongdoing and being afforded with protection for doing so. It is not uncommon for a trustee to be or become aware of wrongdoing within the organisation they are overseeing and currently the law leaves them in a gap in protection.
Watch out for:
It is only a matter of time before an application is made that this broad brush approach in the application of the whistleblowing protections should also be applied to the application of discrimination protections for volunteers under the Equality Act 2010.
Action
While the current position is that volunteers are not protected by the Equality Act in respect of their services, allegations of discrimination would be considered whistleblowing disclosures and as such they may be entitled to protection for raising concerns.
We would also suggest that charities and other not for profit bodies should review their volunteer agreements, and policies and procedures to ensure that there are adequate procedures to support volunteers raising either whistleblowing concerns or allegations of discriminatory practices.
This is particularly important in the context of the new prevent of sexual harassment obligation all organisations.
We would advise that Charities should extend the obligation to attend training to all staff including trustees and other volunteers.
We would be happy to support you in reviewing your current volunteer agreement and policies and procedures. Please contact our Associate, David Leach, for an initial chat.
David Leach is an Associate and Brianna Hall is a Trainee Solicitor at Sharpe Pritchard LLP.
For further insight and resources on local government legal issues from Sharpe Pritchard, please visit the SharpeEdge page by clicking on the banner below.
This video is for general awareness only and does not constitute legal or professional advice. The law may have changed since this page was first published. If you would like further advice and assistance in relation to any issue raised in this article, please contact us by telephone or email This email address is being protected from spambots. You need JavaScript enabled to view it..
