Transcription

• Speaker #0

  Today in the Lefevre HR and Employment Law podcast, we're discussing the Employment Appeal Tribunal's judgment in the case of MacLennan and the British Psychological Society, in which it was asked to determine whether a trustee of a charity was entitled to whistleblower protection. Whistleblowing protection applies to all workers, and the definition of who is considered to be a worker in this context is wide. The key factor in this case, therefore, was whether the trustee was in fact a worker. The charity in question is the representative body for psychologists in the UK, is responsible for the development, promotion and application of psychology for the public good and has 60,000 members. As a trustee of the charity, the psychologist who brought this claim had concerns about the manner in which the charity was run and, in 2020, campaigned to be elected as President-elect with the aim of addressing these concerns. Prior to and on taking up the position of President-elect, The psychologist made a number of protected disclosures. Following his appointment as president-elect, the psychologist confirmed to the board of the charity that he would not be seeking any compensation as president and would want any money attached to the role to go to the Presidential Development Fund. Relations between the psychologist and the senior management team became strained, which resulted in a grievance being brought against the psychologist, the outcome of which was that he was expelled from membership of the charity. which in turn terminated his role as a trustee and president-elect. In a claim brought before an employment tribunal regarding detriments for having made protected disclosures, the psychologist argued that he should be treated as a worker and therefore afforded protection under the whistleblowing legislation in respect of the protected disclosures he had made. Under Charity Commission guidance, charity trustees are to report any serious incident to the Charity Commission, that is, any adverse event which results in or risks significant harm to the charity's beneficiaries, staff, volunteers or others who come into contact with the charity, loss of the charity's money or assets, damage to the charity's property or harm to the charity's work or reputation. However, due to the absence of an intention to enter into a contractual worker relationship between the psychologist and the charity, either as president elect or president, the role which would usually have followed on from 12 months as president elect, The tribunal held that the psychologist's charity trustee status had precluded him from such protection. The psychologist appealed to the Employment Appeal Tribunal on the question of whether there had been an intention to create a contractual relationship between the parties, and the Employment Appeal Tribunal upheld the original tribunal's decision, ruling that, on an overall assessment of the facts, the tribunal had been entitled to reach this conclusion. It had considered the relevant factors such as the manner in which the psychologist was engaged, the rules governing his service, the overall context including the statutory regulation of charities and the expectation that charity trustees are volunteers. However, before the tribunal, the psychologist had also relied on the extension of the definition of a worker in a previous Supreme Court decision by virtue of the right of freedom to expression under Article 10 of the European Convention on Human Rights. when read in conjunction with Article 14 of the same Convention which prohibits discrimination. On this point, the Employment Appeal Tribunal found that the Tribunal had considered the issue of the psychologist's status too narrowly in the light of his Convention rights. The Employment Appeal Tribunal considered that the Tribunal had not adopted a broad-brush approach to the question of whether M was in an analogous situation to an employee or a worker, or whether holding an office as a charity trustee, being president-elect, and or president of the charity with some other status. This approach had required consideration of the relevant surrounding circumstances, but the tribunal appeared to have focused almost entirely on lack of remuneration and the linked fact that M was a volunteer. Although these were relevant factors, they were not determinative. Other factors the tribunal should have taken into account in considering whether there were analogous circumstances with employees or workers would be likely to include the type of role undertaken and level of responsibility, the duties of the role, the likelihood that the person will become aware of wrongdoing, the importance of the person making disclosures of wrongdoing in the public interest, the vulnerability of the person to retaliation for making a protected disclosure, including the extent to which livelihood or reputation might be at risk, the availability of alternative routes to making disclosures of wrongdoing and any alternative protections. and any other relevant distinction between the officeholder and an employee or worker. In the present case, the Employment Appeal Tribunal found that there was a strong argument that being a charity trustee, president-elect or president, was akin to an occupational status. The nature of the role, responsibilities and regulatory regime applied to charity trustees is strongly suggestive of a status. The Employment Appeal Tribunal therefore upheld this ground of appeal and sent the case back to the same tribunal for a reconsideration of the issue of worker status. The whistleblowing charity, Protect, which was acting as an intervener in this case, emphasised before the Employment Appeal Tribunal that unpaid volunteers such as charity trustees can suffer reputational damage akin to workers that could have an effect on their willingness to blow the whistle. Protect contended that all charity trustees should be treated as workers for the purposes of whistleblowing protection. The outcome of this case will be potentially significant in extending the scope of whistleblowing to all charity trustees for the first time. Look out for further episodes in this series to stay up to date on all things HR and employment law related.