A tribunal has found that a trustee who reported concerns to the regulator about his charity was not entitled to whistleblowing protection.
The Employment Tribunal (ET) recently published its judgment in a case involving Nigel MacLennan and the British Psychological Society (BPS).
MacLennan was a trustee and president-elect of BPS when he raised concerns about the charity’s governance and finances with the Charity Commission.
He was then expelled from the charity in May 2021 following allegations of “persistent bullying”, which he denied.
The tribunal 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.
Judge M Butler’s ruling reads: “Having considered these matters, I find that the balance weighs in favour of finding that there is reasonable justification for excluding charity trustees from the benefits of the ERA in relation to public interest disclosures.
“There is a legitimate aim in avoiding conflicts of interest and preserving the financial interests of charities and that aim is one which benefits from that exclusion.
“I further consider the exclusion to be proportionate given, in particular, the potential conflict of interest between a charity trustee’s responsibilities and bringing a whistleblowing claim which might result in significant financial damage to the charity.
“There is, I find in this case, a clear relationship between the justification and proportionality.”
Call for new legislation
In response to the ruling of the tribunal, which heard interventions from the Charity Commission and business secretary, whistleblowing charity Protect called on the government to extend whistleblowing protection to trustees.
Andrew Pepper-Parsons, director of policy and communications at whistleblowing charity Protect, said: “Despite there being a requirement on trustees to speak up when they see wrongdoing in the charities they oversee, the current law does not extend whistleblowing protection to them.
“This judgment denies whistleblowing protection for trustees. The judge placed considerable weight on the secretary of state’s arguments that this is a matter for parliament to decide. There is still a chance the decision could be appealed at the Employment Appeal Tribunal.
“What we really need is for the government and MPs to act quickly and extend whistleblowing protection to include trustees – something ministers already have the power to do via secondary legislation – rather than leave it to whistleblowers to force the change via the courts.”
‘Reassurances to charities’
A spokesperson for the BPS welcomed the judgment for providing “confirmation on the legal position regarding whistleblowing rights for charity trustees”.
“This case follows two independent investigations which upheld allegations of bullying against Dr MacLennan, ultimately leading to his expulsion from the BPS,” they said.
“The BPS takes its governance responsibilities extremely seriously and is committed to maintaining a safe, respectful and transparent professional environment.”
Meanwhile, Harriet Broughton, partner at law firm Stone King, said: “The decision of the employment tribunal, whilst not binding on future cases, will provide reassurances to charities, particularly those navigating challenging board dynamics.
“That said, it seems likely that the case would be appealed. This is therefore a developing area of law, where further judicial decisions are likely.”
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