Summary
HHJ Tayler has recently handed down Judgment in MacLennan v The British Psychological Society [2023] EAT 166, where the EAT has opened the door to protection against whistleblowing detriment under s47B ERA 1996 for trustees.
Littleton’s Jeremy Lewis KC appeared on behalf of the 1st intervener, Protect, instructed by Keystone Law, whilst Paul Gilroy KC appeared on behalf of the Respondent, instructed by Clyde & Co.
The Facts
The Claimant was a charity trustee elected to the role of President-Elect. He was expelled from the British Psychological Society and had his role of trustee and President-Elect terminated. He brought a claim for whistleblowing detriment under s47B ERA 1996 and contended that he had made 4 disclosures prior to ratification of his election and a further 9 disclosures thereafter.
At first instance, the ET considered two issues: (i) whether he was a “worker” under s230(3)(b) ERA 1996; and (ii) whether applying Gilham v Ministry of Justice (Protect intervening) [2019] ICR 1655, s230(3)(b) ERA 1996 read with Articles 10 (right to freedom of expression) and 14 ECHR (prohibition of discrimination on any ground, including “other status”), extended to trustees. Both issues were answered in the negative. The Claimant duly appealed to the EAT. Protect were granted permission to intervene on Grounds 3 and 4 of the appeal.
The EAT’s decision
Issue 1: Whether the Claimant was a s230(3)(b) ERA worker
The EAT held that the ET was entitled to conclude that there was no intention to enter into a contractual relationship whether as President Elect or President thereafter. The EAT reasoned at [85] that the ET was entitled to look at the position at the time that it was asserted that the contract should be implied; when the Claimant had been elected and/or confirmed as President-Elect. Where it was contended that the contract should be implied as a result of the circumstances, it was the existing circumstances which determined whether a contract should be implied.
The EAT found that the Tribunal did direct itself to the fundamental question in Gilham, namely whether there was an intention to create legal relations, which required consideration of 4 key questions, namely:
- the manner in which the office holder was engaged;
- the source and character of the rules governing the service the respondent provides;
- the overall context; and
- any other relevant factors
Further that while the ET did not expressly ask the 4 subsidiary questions in Gilham in its analysis section, those matters were considered in some detail in the findings of fact. The EAT concluded at [93] that the ET answered the question posed in Gilham and concluded that there was no intention to enter into a contractual relationship. The ET had considered the manner in which the Claimant was engaged by noting it was by election rather than entering a formal agreement that set out the terms of engagement and also that it was not inevitable that the President-Elect would become the President. It had further considered the rules governing the service and had noted the governing documents were the Royal Charter, Statute and Rules and had set out in detail the roles and responsibilities of the President and President-Elect. The ET had also considered the overall context such as the common intention that the Claimant would be a volunteer, would not be paid as President-Elect, but could once President claim for loss of salary, (albeit that the Claimant had no intention to do so), and the limited duties of the role of President-Elect and President.
Issue 2: Whether disclosures made to an “employer” prior to commencement of employment are protected
The EAT held at [111] that a “worker” is protected from being subject to detriment by his current “employer” for making a protected disclosure to that employer prior to commencement of that employment.
The EAT noted at [29] and [33] that whilst s43C(1)(a) ERA 1996 refers to a disclosure to “his employer” which might suggest that in the case of disclosure to an employer, it must have been made while the person is a worker for the employer, adopting the purposive approach in cases such as by Woodward v Abbey National plc [2006] EWCA Civ 822 (where the Court of Appeal extended whistleblowing protection to individuals subjected to detriment after their employment had ended); BP plc v Elstone [2010] ICR 879 (where the EAT held that a worker was protected from being subject to detriment done by his current employer because of a protected disclosure made to a former employer); and Onyango v Berkeley (t/a Berkeley Solicitors) [2013] IRLR 338 (where the EAT held that a worker was protected from being subject to a detriment by a former employer where both the disclosure and the detriment occurred after the end of the contract), protection should be extended on the basis that:
“I can see no reason to interpret the provisions to create a lacuna that would exclude such a worker. The position is different to that of a job applicant who never becomes an employee.”
Issue 3: Whether s230 ERA 1996 read with Articles 10 and 14 ECHR extended to trustees
In Wandsworth Borough Council v Michalak [2002] EWCA Civ 271, the Court of Appeal set out 4 questions to consider when invited to consider an Article 14 issue, put in MacLennan as:
- Whether the facts fall within the ambit of one of the Convention Rights;
- Whether the Claimant has been treated less favourably than others in an analogous situation;
- Whether the reason for the less favourable treatment is one of the listed grounds or some “other status”; and
- Whether that difference is without reasonable justification i.e. whether it is a proportionate means of achieving a legitimate aim.
The Appellant contended that Articles 10 and 14 ECHR required the Claimant to be treated as a worker notwithstanding the absence of a contract. In so doing, the Claimant sought to employ Michalak as approved in Gilham.
The EAT found at [99] that whilst the Tribunal correctly asked the 4 questions in Michalak the Tribunal erred in that:
- As set out at [102] – [106] the ET did not adequately consider the relevant circumstances and conduct a broad-brush assessment necessary to decide whether there was an “analogous situation” between the Claimant and employees or limb B workers or whether holding office as a charity trustee. The broad-brush approach required consideration of the relevant surrounding circumstances, whereas the ET had focused on the lack of remuneration and the linked fact that the Claimant was a volunteer, which were relevant but not determinative factors. In considering whether there were analogous circumstances with employees and limb b workers, the relevant factors would also likely 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 protection; and
- Any other relevant distinction between the office holder and an employee and/or limb b worker.
At [105] the EAT found that there was a strong argument that being a charity trustee, President-Elect and/or President is akin to occupational status. The nature of the role, responsibilities, and regulatory regime applied to charity trustees was said to be “strongly suggestive of status.”
- As set out at [106] the ET did not adequately consider whether being a charity trustee, President Elect and/or President is an “other status”. The EAT found that the ET 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 and/or President is an “other status.”
- As set out at [107] the ET had failed to consider the possibility of focussing on the issue of justification.
The Tribunal remitted the matter to the same ET.
The Implications
MacLennan is groundbreaking for 2 reasons:
First applying Gilham and Article 10 ECHR read with Article 14 ECHR, and in a move that will send shockwaves through the charitable sector, it opens the doors to extending the scope of protection against whistleblowing detriment under s47B ERA 1996 to trustees. This substantially increases the risk of liability to a charity, but also to fellow trustees, and may well have a chilling effect on the appetite of individuals to take up such positions given the threat of individual liability. On the flip side, the Judgment will be welcomed by trustees required to raise concerns about wrongdoing to comply with their statutory duties, but whom to date have not been considered as falling within the ambit of statutory protection against detriment for whistleblowers.
Second and more broadly, adopting a purposive interpretation of the legislation, the decision extends the scope of protection to detriment on the grounds of protected disclosures made to an “employer” prior to commencement of employment, albeit the EAT was at pains to clarify this did not extend protection to job applicants.
Whilst the EAT’s decision in MacLennan is not the end of the story, it goes some way laying the groundwork for protecting trustees against whistleblowing detriment. All eyes will be on the Tribunal’s approach to the remitted issues, in particular the issue of justification.
