In this case the Employment Appeal Tribunal (EAT) held that an employment tribunal had been wrong to hold that a charity trustee who was not classed as a worker under the whistleblowing legislation was precluded from bringing a whistleblowing detriment claim. The EAT also held that a worker is protected from being subjected to a detriment by their current employer for making a protected disclosure to that employer prior to the commencement of their employment.
Background
The whistleblowing provisions under the Employment Rights Act (ERA) protect employees and workers who disclose malpractice by their employers or third parties (a protected disclosure) from dismissal and detriment.
Office holders are not generally treated as workers under the legislation. A recent Supreme Court case held that a district judge, who was not a worker under the whistleblowing legislation, was nevertheless entitled to whistleblower protection. This was because the Court interpreted the UK whistleblowing legislation to give effect to the European Convention of Human Rights (ECHR) and in particular Article 10 - freedom of expression, on the grounds of professional status. Article 14 of the ECHR also makes it unlawful to interfere with ECHR rights on prescribed grounds, including "some other status," which can include occupational status.
Any individual wishing to rely on Article 14 must show that the facts of their case fall within the ambit of one of the other ECHR rights: they have been treated less favourably than others in an analogous situation (e.g. employees/workers in this instance); the reason for that less favourable treatment is "some other status"; and that difference is without reasonable justification, i.e. it is not a proportionate means of achieving a legitimate aim.
Facts
Dr MacLennan was a charity trustee elected to the role of president-elect of The British Psychological Society (BPS). He had been a member of BPS since 1984.
Dr MacLennan had concerns about the manner in which BPS was run, so in 2020 he campaigned to be elected as president-elect with the aim of addressing these concerns. At BPS, the president-elect automatically becomes president after a year, then serves a term of one year as president, followed by a year as vice president. The president-elect is elected annually. Dr MacLennan was told that he had been elected on 4 May 2020, but that his election would remain confidential until it was ratified at the AGM on 30 June 2020. He contended that he made four protected disclosures between 3 June 2020 and 19 June 2020. He took up the role of president-elect on 30 June 2020. He contended that he made a further nine protected disclosures between 1 July 2020 and 17 December 2020. At a meeting of the Board on 19 March 2021, Dr MacLennan confirmed he would not be seeking any compensation as president and would want any money to go to the Presidential Development Fund. Relations between Dr MacLennan and BPS became strained, which resulted in a grievance against him. An investigation was conducted and, on 4 May 2021, Dr MacLennan was expelled from membership of BPS, which also terminated his role as a trustee and president-elect.
Dr MacLennan brought a claim before the employment tribunal alleging that these actions amounted to detriment under the whistleblowing provisions. The tribunal held a preliminary hearing to decide the central issue of whether Dr MacLennan, in his capacity as a charity trustee, could be considered a worker and thus be entitled to protection under whistleblowing law.
The tribunal decided that Dr MacLennan was not at any time a worker of BPS. It also decided he was not in an ‘analogous situation’ to a worker and his treatment was not on the grounds of some 'other status' because he was not remunerated and was acting in a purely voluntary capacity. As such, they could not go on to determine whether Dr MacLennan had made protected disclosures or suffered detriments as a result. Dr MacLennan appealed.
Judgment of the EAT
The EAT upheld the appeal and sent the case back to the tribunal to consider the matter further.
The EAT agreed with the tribunal's analysis of worker status relating to the ERA. However, they concluded that the tribunal had failed to properly consider the worker status question in the context of the ECHR. The EAT said that the tribunal did not adequately consider the relevant circumstances and conduct the broad-brush assessment necessary to decide whether there was an 'analogous situation' between Dr MacLennan and employees/workers and whether being a charity trustee, president-elect and/or president is an “other status”.
The tribunal appeared to have focused on the lack of remuneration and the linked fact that a trustee was a volunteer, which were relevant factors but not determinative. Other relevant factors included:
- the type of role undertaken and level of responsibility;
- the duties of the role;
- the likelihood that the person will become aware of wrongdoing;
- the importance of the person making disclosures of wrongdoing in the public interest;
- the vulnerability of the person to retaliation for making a protected disclosure, including the extent to which livelihood or reputation might be at risk;
- the availability of alternative routes to making disclosures of wrongdoing and any alternative protections; and
- any other relevant distinction between the office holder and an employee and/or worker.
The EAT also held that a worker is protected from being subject to a detriment by their current employer for making a protected disclosure to that employer prior to the commencement of the employment. The position is different for a job applicant who never becomes an employee.
What this means for employers
This decision has opened the door to potential protection against whistleblowing detriment for trustees. It is possible that further cases may try to use a similar approach to extend protection more generally to volunteers.
A point of particular importance for employers, was the decision by the EAT that a worker is protected from being subject to a detriment by their current employer for making a protected disclosure to that employer prior to the commencement of the employment. This has the potential to extend whistleblowing protection more widely.
