Morrison Foerster Acts in Landmark Appeal Regarding the Scope of Whistleblower Protection for Charity Trustees

Morrison Foerster and Cloisters Chambers acted in a successful appeal to the Employment Appeal Tribunal (EAT), brought by Dr Nigel MacLennan against the British Psychological Society (BPS). Morrison Foerster acted on a pro bono basis in this landmark ruling that could extend protection against whistleblowing detriment to unpaid charity trustees who raise concerns about corporate governance failures within the charities they oversee.

Dr MacLennan, who was a Trustee and President-Elect of the BPS, brought a claim of whistleblowing detriment against the BPS in the Employment Tribunal (ET). The ET found that it had no jurisdiction to hear the claim because Dr MacLennan was not a “worker” and therefore not protected by whistleblower legislation. In bringing this appeal, Dr MacLennan argued that Articles 10 and 14 of the European Convention on Human Rights (ECHR) (the right to freedom of expression and protection from discrimination) required that he should be treated as a worker.

In a decision issued on October 21, 2024, the EAT found that there is a “strong argument that being a charity trustee… is akin to an occupational status”  The ET had not adequately considered all relevant factors or conducted the “broad-brush” assessment necessary to decide whether whistleblower protection should be extended to Dr MacLennan and other charity trustees to give effect to the fundamental right of freedom of expression. To make that assessment, the ET should consider not only paid or voluntary status but also factors such as the type and duty of the role, the likelihood of the individual becoming aware of wrongdoing, the public interest of the whistleblowing and vulnerability to retaliation for making a protected disclosure. The EAT also confirmed that workers can rely on “pre-employment” disclosures for the purposes of whistleblowing protection.

Dr MacLennan’s claim will now be remitted to the ET for determination. If he is successful, the case could extend the same protections to charity trustees that workers and employees enjoy under whistleblowing legislation. The EAT recognised that the question of whether charity trustees can rely on whistleblowing protection is a question of ‘considerable public importance’ and invited the ET to ask the Secretary of State if they would like to intervene at the remitted hearing.

Oliver Spratt, of counsel in Morrison Foerster’s Employment + Labor practice, led on the pro bono case alongside partner Annabel Gillham, associates Lara King and Dan Alam, and trainee solicitor Michal Pati. Counsel Chris Milsom and Emma Darlow Stearn from Cloisters Chambers appeared on behalf of Dr MacLennan in the EAT.