Whistleblowing protection and charity trustees: Tribunal confirms no whistleblowing protection to trustees

The Employment Tribunal (ET) has delivered its latest judgment in MacLennan v British Psychological Society, confirming that charity trustees are not “workers” and are not entitled to whistleblowing protection.

The case followed the BPS’s removal of its former President Elect, Nigel MacLennan, after allegations of persistent bullying, which he denied. He argued that he was subjected to detriment for raising serious governance concerns and should have been protected as a whistleblower.

The ET originally dismissed his claim on the basis that he was a volunteer. The Employment Appeal Tribunal (EAT) later found that the ET had placed too much weight on his unpaid status and sent the case back for reconsideration of two questions:

1. Is a charity trustee in a position analogous to an employee or limb (b) worker for whistleblowing purposes?
2. If not, does a trustee nevertheless fall within “some other status” under Article 14 of the European Convention on Human Rights (ECHR), giving them a route to discrimination protection?

Both the Secretary of State for Business and Trade and the Charity Commission intervened, reflecting the case’s considerable public importance.

The Tribunal has now delivered its findings, significant for charities, trustees, and anyone involved in charity governance. In doing so, it has closed the door on whistleblowing rights for trustees… at least for now.

Key findings of the Tribunal

1. Trustees are not employees or limb (b) workers: 

The Tribunal ruled unequivocally that charity trustees do not fall within the statutory categories of “worker” or “employee” and therefore cannot bring whistleblowing detriment claims under Part IVA of the Employment Rights Act 1996 (ERA 1996).

The reasoning was clear:

• Trustees are not paid and do not have economic dependency on the charity.
• They are not subordinate to the charity but sit in governance and oversight roles.
• Their role is voluntary and does not expose them to dismissal or economic vulnerability—the risks whistleblowing legislation is designed to mitigate.

2. Not affording trustees with whistleblowing protections has a legitimate aim under Article 14 ECHR:

The Tribunal accepted that trustees do hold an “other status” for Article 14 purposes and that they are treated less favourably than workers.

However, the court felt that this difference in treatment is legitimate, proportionate and justified because:

• Trustees would otherwise be claiming funds they have a fiduciary duty to protect, effectively litigating against themselves and their peers.
• Many charities operate with minimal resources, and whistleblowing claims could threaten their viability.
• Extending worker based protections to trustees would distort the purpose of whistleblowing legislation.
• Trustees are not left without protection, as the Charity Commission provides investigatory and enforcement routes, including a whistleblowing helpline. 

Consequently, trustees cannot rely on Article 14 (protection from discrimination) to claim that they have a right to whistleblowing protections.

Why this matters for charities

This judgment has clear implications:

1. Trustees still cannot claim whistleblowing protection.
2. Voluntary governance roles are legally and structurally distinct from employment. This reinforces a long standing legal principle that trustees: 
   •    hold oversight, not operational roles;
   •    are autonomous rather than subordinate; and
   •    should rely on regulatory, not employment based, avenues for raising concerns. 
3. Reinforces the notion that charity trustees are volunteers and are not afforded worker protections.
4. The pressure now shifts to Parliament to legislate on whether to extend whistleblowing protections. 

Following the latest ruling Mr MacLennan resigned his post citing the ‘impossible fiduciary position’ of trustees. As a first-tier decision the judgement is not binding so on different facts a future tribunal may come to the opposite conclusion. For now, charities can take some reassurance from the clarity of this ruling, but they should still ensure that trustees have safe internal routes for raising concerns and that no trustee is penalised for doing so.

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