An employment appeal tribunal has ruled in a claimant’s favour in a landmark hearing that could result in whistleblowing protections being extended to cover charity trustees.

Nigel MacLennan, former trustee and president-elect of the British Psychological Society, strongly denied “persistent bullying” allegations after he was expelled from the charity in 2021.

At an employment tribunal last year, MacLennan claimed he should have been given whistleblowing protections after he found “serious concerns of corporate governance failings within the BPS, including potentially illegal practices”. 

The tribunal rejected MacLennan’s claim and found he was not protected by whistleblower laws because he was not a BPS worker.

As a result, the tribunal decided it had no jurisdiction to hear his complaints of detriment for making protected disclosures. 

An appeal hearing was held in July and the whistleblowing charity Protect intervened on behalf of MacLennan.

In a judgment published yesterday, Judge James Tayler upheld MacLennan’s claim and sent the case back to the tribunal to consider the matter further.

The judge found the rights of the trustee as an office-holder and under the European Convention of Human Rights to freedom of expression were not compatible with MacLennan being denied whistleblowing protection in the UK.

He said: “I consider that the employment tribunal did not adequately consider the relevant circumstances and conduct the broad-brush assessment necessary to decide whether there was an ‘analogous situation’ between the claimant and employees or Limb B workers and whether being a charity trustee, president-elect or president is an ‘other status’.”

A “Limb B” worker covers a person who works under a contract for service with an organisation, but has a “casual employment relationship”.

Limb B workers are not offered regular or guaranteed hours and usually carry out irregular work.

They receive holiday pay after one month of continuous service, but not other employment rights.

Judge Tayler said: “The employment tribunal appears to have focused almost entirely on lack of remuneration and the linked fact that the claimant was a volunteer. 

“These were relevant factors, but not determinative.”

Judge Tayler said some relevant factors would include the type of role undertaken, level of responsibility and duties of the role, likelihood that the person would become aware of wrongdoing, the importance of the person making disclosures of wrongdoing in the public interest and the vulnerability of the person to retaliation for making a protected disclosure.

Paul Daniels, partner at Keystone Law, the solicitors representing Protect, said in a crucial part of the judgment, the judge found there was a “strong argument” that being a trustee, president-elect or president was akin to an occupational status.

“Although there are other legal issues to factor in before protection is formally granted, this is a strong indication that many UK trustees will be protected going forward,” Daniels said.

“It was also usefully held by the employment appeal tribunal that a worker is protected from being subject to a detriment by his current employer for making a protected disclosure to that employer prior to the commencement of the employment. 

“This will extend UK whistleblowing laws more widely.”

Elizabeth Gardiner, chief executive of Protect, said the judgment needed to be the “spur” to make the government act.

“As influential and critical members of a charity, trustees are essential in detecting and deterring wrongdoing such as fraud, safeguarding issues and mismanagement,” she said.

“This ruling should mean that many more trustees will have the confidence and legal protection to call out wrongdoing when they see it.

“However, it is grossly unfair to expect individual whistleblowers to bring cases through the courts system, with all the stress and cost that falls on them, in order to make these sensible changes to the law.

“This judgment needs to be the spur to make the government act.”

Gardiner said legislation should be updated to cover trustees, along with “many more thousands” of people who currently sit outside the parameters of whistleblowing law.

A spokesperson for the British Psychological Society said it was a “complex case” with potentially far-reaching implications for the charity sector. 

“It has arisen following two independent investigations which upheld allegations of bullying, which resulted in Dr MacLennan being expelled from the British Psychological Society,” the spokesperson said.

“Of the four grounds for appeal in this case, the employment appeal tribunal has dismissed two grounds and confirmed that Dr MacLennan did not have the status of a worker under a contract and so is unable to bring a whistleblowing claim on that basis.

“The employment appeal tribunal has referred the remaining two grounds back to the original tribunal for further consideration. 

“As this is an ongoing legal process, we do not believe it is appropriate for either party to comment further.”