In this case, the Claimant was a charity trustee who was elected to the position of President-Elect of the Respondent, the representative body for psychologists in the UK. The Claimant’s position as a trustee and President-Elect was terminated following a falling out with the senior management team of the Respondent. The Claimant brought claims for whistleblowing on the basis of suffering less favourable treatment.
Throughout his membership of the Respondent, the Claimant began to have concerns about the way in which the organisation was run, and subsequently, in 2020, campaigned to be elected as President-Elect to address his concerns. The Claimant was successfully elected in May 2020 but was informed that his election would not be announced until its ratification on 30 June 2020, approximately 8 weeks later.
During this period, the Claimant made four protected disclosures before beginning the role of President-Elect on 30 June 2020. The Claimant then made a further 9 protected disclosures between 1 July and 17 December 2020.
Importantly, the position of President-Elect is generally the beginning of a three-year term, with the first year spent as President-Elect, the following year as President and the final year as Vice-President, with responsibilities increasing from approximately 16 to 35 days per year.
Shortly prior to the Claimant’s anticipated move to the position of President, the Claimant became the subject of a grievance, following a deterioration in his relationship with the senior management team. He was subsequently expelled from membership of the Respondent, terminating his trusteeship and President-Elect positions, on 4 May 2021. He pursued whistleblowing claims in the Employment Tribunal, relying on the protection from detriment for protected disclosures under Section 47B of the Employment Rights Act 1996. However, the Employment Tribunal dismissed the claims, citing that the Claimant did not meet the definition of a worker as set out in Section 230(3)(b) of the Employment Rights Act 1996.
In reaching its decision, the Employment Tribunal considered the case of Gilham v Ministry of Justice, 2019 ICR 1655, in which the Supreme Court held that it would be in breach of Articles 10 (freedom of expression) and 14 (prohibition of discrimination) of the European Convention on Human Rights (ECHR) to deny whistleblowing protection. However, the Employment Tribunal determined that unlike in Gilham, the Claimant in this case was not in a situation analogous to a worker. In particular, it determined that his voluntary and unpaid position meant that the protection from treatment on the grounds of ‘some other status’ could not apply.
The Claimant appealed to the EAT, citing that in his position as President-Elect, he should be treated as a worker so as to be protected against detrimental or unfavourable treatment on the grounds of making protected disclosures.
The EAT considered Gilham to the extent that an office holder may have a contract if the parties intended to enter into a contractual relationship but determined that the Claimant was not a worker and that no such contract existed.
The EAT next considered the Employment Tribunal’s decision regarding the ECHR, determining that any party wishing to rely on Article 14 must show that:
The EAT cited other cases as taking a ‘broad brush’ approach in determining ‘other status’ and found that the Employment Tribunal focused too heavily on the Claimant’s position being unpaid and voluntary. The EAT considered other factors relevant to whether the Claimant could pursue a whistleblowing claim. These matters included:
The EAT concluded that, when considering the ‘broad-brush’ approach, there were good prospects that the Claimant’s position as a charity trustee could result in an analogous situation to that of an employee or worker.
Finally, the EAT considered whether protection from being subjected to a detriment for making a protected disclosure would apply prior to the commencement of any engagement, and in this instance, to the four disclosures made before between his election and commencement of the President-Elect position. The scope of section 43C(1)(a) Employment Rights Act 1996 generally refers to a disclosure to ‘his employer’, however the EAT considered the underlying purpose of the legislation and determined that these protections should apply even when protected disclosures are made prior to the commencement of engagement.
The EAT remitted the claim to the Employment Tribunal to reconsider the claim through the lens of a ‘broad-brush’ approach, including the possibility of the justification of any such less favourable treatment.
Matthew Potter comments:
The case of Dr Nigel MacLennan v The British Psychological Society is significant because it potentially widens the scope for protection from detriment for protected disclosures to charity trustees and other roles analogous to a worker or employee. Charities and other voluntary organisations should be aware of the potential protection offered to non-employed office holders with regard to whistleblowing.
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