Extending whistleblowing protection to charity trustees

When things go wrong, it is important that those who work or volunteer for a charity can raise their concerns. Speaking up is an important part of keeping people safe and upholding the values of the charity sector.

Charities are no stranger to serious malpractice scandals, such as revelations about widespread sexual exploitation and abuse in the international aid sector. Protect, the UK’s leading whistleblowing charity, says that despite the charity sector representing a relatively small proportion of the UK workforce, calls from those involved in charities make up a large proportion of calls to its advice line.

This article looks at the extent to which whistleblowing protection is afforded to those who volunteer as charity trustees.

What is whistleblowing?

Whistleblowing is where a person raises a concern with someone in authority (internally or externally, or both) about wrongdoing, risk or malpractice.

Under the Employment Rights Act 1996, whistleblowers are protected from dismissal or detriment when making a disclosure if certain conditions are met. This is known as a “protected disclosure”.

For a whistleblower to receive legal protection:

• First, they must reasonably believe that their disclosure is made in the public interest. This means that the malpractice disclosed must impact others, rather than just the whistleblower.
• Second, the disclosure must be a disclosure of information which shows, in the reasonable belief of the worker, that one or more of the types of wrongdoing listed in the legislation has taken or is likely to take place. The categories of wrongdoing are wide and include: criminal offences, breach of any legal obligation, danger to health and safety, and damage to the environment.
• Finally, the disclosure must be made to the whistleblower’s employer, their legal advisor, a government minister or a person prescribed by the legislation (such as the Charity Commission, HMRC or the Equality and Human Rights Commission). Wider disclosures to other entities, such as the media, are only protected in limited circumstances and if strict conditions are met.

This is a “day one” right. An employee or worker can therefore bring a whistleblowing claim from the first day of their employment.

A worker is someone who personally performs any work or services for another under an express or implied contract, other than where this constitutes a client or customer relationship. The standard employment law definition of a worker is extended to give whistleblowing protection to specific individuals who would not ordinarily be covered, including agency workers, homeworkers, self-employed NHS doctors, dentists, ophthalmologists and pharmacists, nurses and midwives in training, police officers and Crown employees.

The Charity Commission is a “prescribed person” for workers in the charity sector in England and Wales. This means that a charity worker who makes a qualifying disclosure to the Commission about suspected malpractice by their employer or a third party receives whistleblower protection (provided the other conditions set out above are met).

Extending the right to office holders

Despite its breadth, the definition of a worker does not currently include an office holder (that is, a person who is appointed to a position by a company or organisation but does not have a contract or receive regular payment).

However, in 2019, the Supreme Court held [1] that, although not a worker under employment legislation, the holder of a judicial office (a district judge) was entitled to whistleblower protection by interpreting the rules purposively to give effect to European Convention of Human Rights (ECHR) rights.

Then, in MacLennan v British Psychological Society (Protect and Charity Commission intervening) [2024] EAT 166, the Employment Appeal Tribunal (EAT) gave a strong steer that whistleblowing protection should be extended to charity trustees.

British Psychological Society case

For many years, Dr MacLennan had been a member of the British Psychological Society, the representative body for UK psychologists. He successfully campaigned to become president-elect, with the aim of addressing concerns about how the Society was run.

During his time as president-elect, Dr MacLennan made several protected disclosures. Relationships between the Society and Dr MacLennan deteriorated and, following an investigation, he was expelled from membership. This terminated his role as charity trustee and president-elect. He complained to an employment tribunal that these actions amounted to detriments resulting from the protected disclosures he had made.

The employment tribunal decided that, because Dr MacLennan was not a worker of the Society, it had no jurisdiction to hear his complaint. Dr MacLennan appealed this decision.

The Employment Appeal Tribunal (EAT) concluded that, while it was entitled to find that Dr MacLennan did not meet the statutory definition of a worker, the lower tribunal had not properly assessed whether whistleblowing protection should extend to charity trustees, to ensure compliance with Dr MacLennan’s ECHR right to freedom of expression.

The matter has therefore been sent back to the lower tribunal for further consideration. In particular, the EAT said that:

• There was a strong argument that being a charity trustee was akin to an occupational status. The nature of the role, responsibilities and regulatory regime applied to charity trustees was strongly suggestive of such a status.
• The lower tribunal needed to ask itself whether there was a reasonable justification for excluding someone in Dr MacLennan's position from the protection enjoyed by other workers and employees.

As this is an issue of considerable public importance, the EAT has suggested that the Secretary of State be asked whether they wished to intervene in the case (to provide information and expertise in order to help the tribunal make its decision).

An untenable position?

The importance of the right of the insider to speak out (and the public to hear) about malpractice has led to whistleblowing protection being extended well beyond the traditional confines of employees.

Charity trustees have ultimate responsibility for the governance and affairs of their charity – the buck stops with them. A key part of their role is to be a critical friend who scrutinises and, where necessary, robustly challenges the decisions and actions of the senior management team. They are well placed to become aware of public interest wrongdoing.

Under the serious incident reporting regime, charity trustees must report serious incidents that involve their charity, or a partner of the charity, to the Charity Commission. A serious incident is described as an adverse event, whether actual or alleged, which results in or risks significant:

• harm to a charity's beneficiaries, staff, volunteers or others who come into contact with a charity through its work;
• loss of a charity's money or assets;
• damage to a charity's property; or
• harm to a charity's work or reputation.

Charity trustees are therefore in a unique position to identify wrongdoing and have a duty to disclose it, but currently they do not receive any legal protection from the adverse consequences of speaking out. This means that those who give freely of their time and expertise to govern charities are in a worse position than paid charity employees and workers. This may well deter charity trustees from calling out wrongdoing when they see it, which appears increasingly untenable.

It had been thought that the Government might seek to strengthen whistleblowing rights, including extending them to charity trustees and other volunteers, in its flagship Employment Rights Bill. However, this has not appeared among the sweeping reforms that are currently making their way through Parliament (see The Employment Rights Bill: what it means for employers for an overview of these).

The tribunal’s further decision on this important issue is therefore much anticipated. Charities will wish to follow developments on this point and update policies and practices as required to reflect the outcome.

[1] In Gilham v Ministry of Justice [2019] UKSC 44.

This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.