The answer is maybe.
If you want to bring a claim for detriment because you have blown the whistle (section 47B of the Employment Rights Act 1996), you first have to show that you are a worker and have standing to bring a claim. There has been lots of case law on who has worker status, for example Uber and Bolt drivers have successfully been recognised by the courts as workers.
Broadly, a worker is defined as a person who works under a contract of employment or another type of contract, where they personally perform work or services for another party, but who is not a client and customer. Workers are distinct in law from employees.
In MacLennan v British Psychological Society the Employment Appeal Tribunal (EAT) looked at whether a charity trustee had worker status to bring his whistleblowing claim. Dr MacLennan had been expelled from the Society and terminated from his position as trustee and President-Elect. He was unhappy with the way the Society was run and made a number of complaints about its governance.
The relationship between him and the management team deteriorated, culminating in his termination. He contended that these actions were because he had blown the whistle – made protected disclosures. To be able to bring this claim he contended he was a worker.
At first instance, the tribunal disagreed and said no, he was not and dismissed his whistleblowing claim. That decision was appealed to the EAT.
The EAT upheld the tribunal’s decision that Dr MacLennan did not have a contract and therefore was not a worker.
Whether someone is a worker is a multifaceted test. The EAT said that you should look at the following factors to determine worker status:
- The manner of the engagement;
- The sources and character of the rules governing the services;
- The overall context; and
- Any other relevant factors.
Applying the test, the EAT held that there was no intention by the parties to enter into a contractual relationship. Dr MacLennan was not paid, and his duties were limited.
The EAT did hold that the tribunal had not properly analysed whether Dr MacLennan was in an analogous situation to an employee or worker, or if he had some other status. This is a fact-based test, but if akin to an occupational status, then he could be afforded whistleblowing protection under Convention rights (Article 14 – the freedom not to be discriminated against, read together with Article 10 – the right of freedom of expression).
As a result, the case has been remitted back to the tribunal for a fresh hearing on this point.
Of equal importance, the EAT held that a worker is protected from being subject to a detriment for making a protected disclosure prior to the commencement of employment.
There are nearly a million charity trustees in the UK so the significance of this decision should not be underplayed. So much so that the Charity Commission intervened and made representations at the EAT because of the case’s general public importance.
Let’s see what the tribunal now decides but I am sure that this is not the last we have heard of this case.
This blog was written by Anita Vadgama, Partner at didlaw.