This EAT ruling in October 2024 may lead to a significant broadening of the scope of whistleblowing protections to include charity trustees. This change may lead to far-reaching effects across the charity sector.

Dr MacLennan was expelled from the Respondent and had his position as trustee and President-Elect terminated in May 2021 following what he argued were 9 protected disclosures in relation to the running of the organisation. Bringing a claim for having suffered whistleblowing detriment under s.47B ERA 1996, the Claimant argued that trustees should be regarded as workers under employment law and therefore offered the same whistleblowing protections against detriment as workers.

The Employment Tribunal (ET) considered two issues at first instance.  Firstly, whether Dr MacLennan was a "worker" as defined under s.230(3)(b) ERA 1996 (and therefore entitled in principle to protections for whistleblowing that might have made the termination of his role unlawful), and secondly, applying the case of Gilham v Ministry of Justice (Protect intervening) [2019] ICR 1655, whether the European Convention on  Human Rights (ECHR) Articles 10 (right to freedom of expression) and 14 (prohibition of discrimination on any ground (including "other" status) extended to trustees.  On both issues, the ET dismissed Dr MacLennan's claims.

On appeal, the EAT upheld the ET’s view that trustees are not “workers” under s.230(3)(b) ERA 1996, since there was no contractual relationship implied by the claimant’s election to the role of President-Elect.  Key to this finding was the ET's consideration of similar factors to those set out in Gilham v Ministry of Justice in determining whether an employer-employee relationship exists, such as the election of the Claimant to his role rather than him entering into a formal agreement, and the surrounding context (including a shared intention that Dr MacLennan would be a volunteer). The EAT concluded that there was no intention to enter into a contractual relationship.

Adopting a purposive approach to the ERA 1996, the EAT made a novel ruling that detriments arising from disclosures made before employment began could be protected.  However, it specified that this protection does not extend to unsuccessful job applicants, differentiating cases where an employment relationship is likely to commence from situations involving prospective hires who never become employees.

The EAT noted, the Claimant relied on Article 10 read with Article 14 ECHR and that the Employment Tribunal had correctly asked the Gilham questions

• whether the facts fell within the ambit of one of the Convention rights; 
  
  
• whether the claimant had been treated less favourably than others in an analogous situation; 
  
  
• whether the reason for that less favourable treatment was because of some “other status” and 
  
  
• whether the difference of treatment was without reasonable justification.

The parties agreed that the answer to question 1 was in the affirmative. The Employment Tribunal answered questions 2 and 3 in the negative and did not go on to consider question 4. The EAT concluded that the Employment Tribunal did not adequately consider the relevant circumstances and conduct the broad-brush assessment necessary to decide whether there was an “analogous situation” between the claimant and employees or limb B workers; or whether being a charity trustee, President-Elect and/or President is an “other status”. The Employment Tribunal also failed to consider the possibility of focusing on the issue of justification.

Given the claimant’s responsibilities and the regulatory framework governing his role, the EAT highlighted the possibility that trustees as volunteers, despite being unpaid, could face risks similar to employees when reporting wrongdoing, warranting whistleblowing protections. There was a strong argument that being a charity trustee, President-Elect and/or President is akin to an occupational status. The case was remitted to the same Employment Tribunal for a determination. The EAT accepted the point made by the claimant and the Charity Commission that this is a matter of considerable public importance. The EAT noted that the Employment Tribunal is likely to be assisted by hearing from the interveners and it may be that the Government will now seek to intervene, particularly as the Employment Tribunal is likely to consider justification.

If on remittal the ET determines that s.47B ERA 1996 extends protections to charity trustees, charities will face greater potential liability in respect of their trustees. It would certainly increase the onus on charities to identify and properly manage whistleblowing-type disclosures.

Further, the EAT's ruling provides confirmation that, although whistleblowing protections do not apply to job applicants, employers should beware that employees can be protected from detriment resulting from whistleblowing before their term of employment commences.

You can read the case in full here.