A charity chair has resigned after a court recently ruled against his claim that whistleblowing rights should be applied to voluntary trustees.
In February, the Employment Tribunal (ET) ruled that Nigel MacLennan was not able to claim whistleblowing protection as an employee might when he served as a trustee and president-elect of the British Psychological Society (BPS).
MacLennan, who plans to appeal the ruling, has now stepped down from the board of children’s classical music charity Playground Proms.
In a letter sent to the Charity Commission last week, MacLennan said his decision to step down from Playground Proms was a “reflection of the unsustainable and hazardous legal environment in which all UK charity trustees are now forced to operate”.
“As a trustee, the law imposes upon me a strict duty of candour and a legal obligation to challenge and report wrongdoing,” his letter reads.
“However, the UK legal framework fails to provide trustees with the fundamental protections afforded to ‘workers’ under the Employment Rights Act 1996.”
MacLennan argued that, without whistleblowing protection, trustees challenging wrongdoing such as governance failures are open to “arbitrary and capricious treatment” or removal from their charity.
Such removals lead to reputational and psychological harm for those trustees ousted, he said “for which the current law provides no remedy or protection”.
Background and responses
MacLennan had raised concerns about BPS’s governance and finances with the Charity Commission when he was a trustee before being expelled from the charity in May 2021 following allegations of “persistent bullying”, which he denied.
The ET considered whether a trustee such as MacLennan should be able to claim whistleblowing protection as an employee might under the Employment Rights Act (ERA) 1996, which was introduced by the Public Interest Disclosure Act (PIDA) 1998.
It assessed current routes for trustees reporting concerns to the commission and whether covering them by whistleblowing laws might create a conflict with regard to their responsibilities to act in their charity’s best interests.
The tribunal also considered the potential financial impact on charities having to defend cases brought by whistleblowing trustees and ultimately found a “reasonable justification for excluding charity trustees from the benefits of the ERA in relation to public interest disclosures”.
Commenting on MacLennan’s resignation from Playground Proms, a commission spokesperson said: “The employment tribunal clarified that, as trusteeship is a voluntary role not employment, it cannot hear a trustee’s complaint against their charity.
“However, whistleblowers, whatever connection they have to their charity, are encouraged to bring serious concerns to our attention.
“These confidential disclosures are an important part of how the commission can uncover wrongdoing and harm in charities and we have put in place measures to support them.”
A spokesperson for the BPS said: “Mr MacLennan’s resignation relates to a separate organisation, and it would not be appropriate for the BPS to comment on matters concerning another charity.
“The BPS takes its governance responsibilities extremely seriously and is committed to maintaining a safe, respectful and transparent professional environment.”
