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The EAT opens the door for charity trustees to be protected as whistleblowers

In a landmark decision by the Employment Appeal Tribunal (“EAT”), the door has been opened for UK charity trustees to receive protection from adverse treatment for making whistleblowing disclosures. The case also decides that workers are protected from retaliation for having blown the whistle prior to the start of their employment.  

Dr Nigel MacLennan, a psychologist, was a charity trustee elected to the role of President-Elect of the British Psychological Society and he brought a whistleblowing claim against the charity under section 47B of the Employment Rights Act 1996. The Employment Tribunal decided it had no jurisdiction to hear his complaints of detriment for making protected disclosures.

However, the EAT upheld two grounds of appeal and remitted the case back to the Employment Tribunal.  His Honour Judge Tayler found that the tribunal had taken too narrow of a view in focussing on whether a charity trustee is a volunteer. The tribunal had failed to conduct a broad-brush assessment to decide whether excluding such protection was in breach of his Article 10 right (freedom of expression) when read together with Article 14 (right not to be discriminated against). The EAT also upheld the ground that workers should be protected from whistleblowing detriment when protected disclosures are made before employment commences.

The case if of significant public importance and both Protect, the leading whistleblowing charity, and the Charity Commission, were given permission to intervene by the EAT. The Secretary of State will be invited to intervene in the remitted proceedings.

Mukhtiar Singh, led by Jeremy Lewis KC, was instructed by Paul Daniels of Keystone Law on behalf of Protect who intervened on both successful grounds. The judgment is available here: Dr Nigel MacLennan v The British Psychological Society [2024] EAT 166.

Some media coverage is available here and here.

Mukhtiar specialises in whistleblowing and discrimination cases, particularly in the regulated sectors.