Employment Appeal Tribunal finds charity trustee should not have been precluded from raising whistleblowing claim

About this case:

• Citation:
  [2024] EAT 166
• Judgment:
  External link
• Court:
  Employment Appeal Tribunal
• Judge:
  His Honour Judge James Tayler

It was concluded by the Employment Tribunal that the respondent had no intention of entering into a contractual relationship with claimant Dr Nigel MacLennan, and thus the Tribunal had no jurisdiction to hear his complaints. The ET did not consider whether the claimant had made a qualifying disclosure and limited its scope of inquiry to whether he qualified as a worker.

The appeal was heard by Judge James Tayler, with Christopher Milsom and Emma Darlow Stearn appearing for the claimant and appellant and Paul Gilroy KC and Tim Sheppard for the respondent.

Chilling effect

The respondent was a registered charity and the representative body for psychologists in the UK. Each year, it held an election for the role of President-Elect, who would generally become President of the society after a year as President-Elect. In 2020, the claimant campaigned to be elected with the aim of addressing concerns he has previously raised about the manner in which the respondent was run. He contended that he made 4 protected disclosures between 3 and 19 June 2020, and a further 9 after he was elected between 1 July and 17 December 2020.

Relations between the claimant and the respondent’s Senior Management Team became strained, resulting in a grievance against the claimant and later his expulsion from membership of the respondent. At a Preliminary Hearing of the ET, consideration of the claim was limited to whether the claimant was protected from suffering detriment done on the grounds of protected disclosure because he was a worker.

For the claimant it was submitted that the ET erred in determining the question of worker status solely by reference to the year served as President-Elect and excluding the agreement to serve as President in the future. In addition to his employment status, the claimant also relied on Article 10 read with Article 14 ECHR, arguing he had been treated less favourably than others in an analogous situation.

An intervention was made in the case by the whistleblowing charity Protect, which contended that all charity trustees should be treated as workers for the purposes of whistleblowing protection. It emphasised that unpaid volunteers could suffer reputational damage, akin to workers, that could have a chilling effect on their willingness to blow the whistle, and that European provisions have stressed the importance of volunteer workers being protected and having an effective remedy.

Broad-brush approach

In his decision, Judge Tayler said of the claimant’s status: “The claimant contends that section 230 of the Employment Rights Act 1996 applies to a person who has entered into a contract - and so a person can become a worker before undertaking any work. I do not disagree with that proposition. So, for example, the claimant could have entered into an express contract to become the President of the respondent at a date in the future and that express contract could be analysed to determine whether the claimant was a worker.”

However, he continued: “The relatively limited duties of the President-Elect and President were matters that the Employment Tribunal was entitled to have regard to. I do not consider that, as asserted by the claimant, the Employment Tribunal applied a minimum threshold of work that must be done for a person to be a worker, but took account of the nature and extent of duties when deciding whether there was contractual intention. I do not consider that the claimant can be in any doubt as to why he lost on the contract issue.”

Turning to the ECHR argument, Judge Tayler said: “I consider that the Employment Tribunal did not adopt a broad-brush approach to the question of whether the claimant was in an analogous situation to an employee or limb B worker or whether holding an office as a charity trustee, being President-Elect and/or President of the respondent was some other status. The broad-brush approach requires consideration of the relevant surrounding circumstances. The Employment Tribunal appears to have focused almost entirely on lack of remuneration and the linked fact that the claimant was a volunteer.”

He concluded: “This is a matter of considerable public importance. The Employment Tribunal is likely to be assisted by hearing from the interveners and it may be that the Government will now seek to intervene, particularly as the Employment Tribunal is likely to consider justification. Contrary to the suggestion of the Charity Commission, these are not matters for me, but for the Employment Tribunal on remission.”

The matter was therefore remitted to the same Employment Tribunal for further consideration.