No, according to the Employment Tribunal in MacLennan v British Psychological Society.
Note that this judgment is not binding on other tribunals because it is not an appeal judgment.
Dr N MacLennan was a trustee of the British Psychological Society. He argued that he held rights analogous to an employee and was therefore entitled to bring claims for whistleblowing detriment under section 47B of the Employments Rights Act 1996 (ERA 1996).
This case was first brought before the tribunal in 2023 where it was held that Dr MacLennan was not entitled to whistleblower protection because he did not meet the Employment Rights Act 1996 (ERA 1996) definition of a worker (section 230(3) ERA 1996).
Dr MacLennan successfully appealed that decision to the Employment Appeal Tribunal (EAT) relying on Gilham v Ministry of Justice [2019] UKSC 44, a decision of the Supreme Court, which demanded a ‘broad brush’ analysis as to whether the claimant should be treated as a worker to protect his Article 14 (prohibition of discrimination), read with Article 10 (freedom of expression) rights of the European Convention on Human Rights (ECHR). The EAT found fault with the ET’s decision and remitted the case (sent it back) to the ET to be reconsidered.
Dr MacLennan failed a second time in the Employment Tribunals. The ET held that he was not entitled to bring a claim for whistleblower detriment because:
- The position of a charity trustee has important and material differences with that of an employee or worker.
- The Gilham analysis about occupational status is not relevant to charity trustees whose status is governed by statute and regulation and does not count as an occupation.
- The ET conceded that a charity trustee is an “other status” for the purposes of Article 14 of the ECHR.
- It could therefore be discriminatory to treat trustees differently to workers or employees but this is open to justification. On balance the ET found that the difference in treatment was justified as a proportionate means of achieving a legitimate aim.
The claim failed. We understand that this decision will be appealed again to the Employment Appeal Tribunal and watch with interest to see what the EAT holds if the case proceeds.
This blog was written by Elizabeth McGlone, Managing Partner of didlaw and Head of Dispute Resolution.
