Extension of Whistleblowing Protection

October 31, 2024

Share this article

Extension of whistleblowing protection: A case of public importance: Disclosures made before commencement of employment and disclosures made by charity trustees.
Introduction
Informed employers and employees will already know that it is unlawful for employees or workers to be subject to a detriment or dismissed because they have reported information, that in their reasonable belief, shows or tends to show some form of unlawful conduct, and it is in the public interest to make that disclosure (commonly known as whistleblowing).
Two important developments have arisen in the Employment Appeal Tribunal case of MacLennan v The British Psychological Society [2024] EAT 166 (21 October 2024)   Pre-employment disclosures
The EAT has confirmed that a worker is protected from being subjected to a detriment by their current employer for making a protected disclosure to that employer prior to the commencement of their employment.
Extension of protection to volunteer charity trustees
The EAT also considered that a charity trustee (a volunteer) may qualify for whistleblowing protection on the following grounds:
1)     to deny a volunteer, charity trustee (here a President-Elect of the Charity) protection, would breach their human right not to be discriminated against (i.e. Article 14 of the European Convention on Human Rights (ECHR)) when exercising their human right to freedom of expression under Article 10 of the ECHR); 
2)     where the volunteer has been treated less favourably than someone (e.g. a worker or employee) in an analogous situation;
3)     where the less favourable treatment relates to whistleblowing; and if so,
4)     such less favourable treatment is without reasonable justification (or put the other way round; is the ‘employer’ entitled to treat the volunteer charity trustee less favourably because it is a proportionate means of achieving a legitimate aim?).
Potential breach of Human Rights
The case itself is of public importance. The finding potentially conflicts with the position of the Charity Commission that trustees of charities do not have the benefit of statutory protection for whistleblowing. Rules relating to trustees are governed by the rules of the Charities Act 2011 and governed by the High Court (not Employment Tribunals).
The Employment Appeal Tribunal remitted the case back to the Employment Tribunal to consider the above questions and has suggested that the ET invites the government (Secretary of State) to intervene in the remitted case as well as current interested third parties, the Charity Commission and Protect*.
Section 3(1) of the Human Rights Act 1998 requires courts to interpret legislation purposefully where possible to give effect to ECHR rights. Where a case relates to a point not covered by, or in conflict with, existing legislation and is of considerable public importance, an interested party such as a regulator, a charity or the government may intervene to put forward their arguments. In this case, current law is potentially in breach of ECHR. 
Personal comment
This case is interesting as it continues to interpret whistleblowing detriments as a form of unlawful discrimination. It imports the requirement for a comparator for the test of less favourable treatment, which forms part of the test for unlawful discrimination under the Equality Act 2010. It also provides the ‘employer’ with the defence of justification (i.e. where the less favourable treatment is a proportionate means of achieving a legitimate aim) similar to indirect discrimination claims under the Equality Act 2010.   
It is also an example of one of the mechanisms that can lead to the creation of new law. If the Employment Tribunal finds in favour of the Claimant, new legislation (e.g. by way of a remedial order to the Charities Act 2011 and an amendment to the Employment Rights Act 1996) may be passed to clarify that volunteer office holders in the Charity Sector are entitled to whistleblowing protection.
This case reflects the view that whistleblowing protection is outdated and in need of reform. On 27 March 2023, the Conservative Government launched its review of the current whistleblowing framework, with the purpose of informing government policies on the development and improvement of the existing whistleblowing regime. Central topics covered were who is covered by the whistleblowing protections, the availability of information and guidance for whistleblowing purposes and how employers and prescribed persons respond to whistleblowing disclosures. It was expected that research would be concluded at the end of 2023. However, legislative changes to the whistleblowing framework appear to have been deprioritised for the time being.   *Protect is a charity concerned with climate change and preventing environmental damage. In Autumn 2023 it published a practical environmental whistleblowing toolkit to help employees and workers understand their rights when raising environmental concerns in the workplace. Environmental-Whistleblowing-Toolkit.pdf

Our expert employment law solicitors all have many years’ experience advising individuals who are in your position. We will be able to guide you through the process and to help you secure the best possible outcome.
We offer a range of services, so please contact our friendly customer services team to discuss further via  hello@kilgannonlaw.co.uk  or  0800 915 7777 .

This article is for information purposes only and is correct at the time of publication. It does not constitute legal advice 31.10.24

< Older Post Newer Post >

Recent Posts

Three coworkers reviewing documents at a table in a bright office

Fire and rehire restrictions: what employers need to know ahead of January 2027

By Anthony Thompson • October 22, 2026
New fire and rehire restrictions are expected in January 2027. Discover which contractual changes are affected and how employers can prepare.
Two coworkers reviewing documents at a table with a laptop in a bright office, one pointing thoughtfully

What are the Key Areas Likely to be Impacted by these changes and What Steps Can Employers Take to Prepare for them?

By Nicola Cockerill • October 20, 2026
Explore key employment law changes, the areas they may affect and practical steps employers can take to prepare their business and HR policies.
Three coworkers in a meeting, discussing ideas around a laptop at a conference table.

Unfair Dismissal changes from 1 January 2027: What employers need to do now

September 25, 2026
From 1 January 2027 unfair dismissal protection moves to six months and the compensation cap is removed. See what employers should change now.
Two people talking in a modern office lounge, seated across from each other and holding papers.

The (re)introduction of third-party harassment from 30 October 2026. What the duty means for employers.

September 25, 2026
From 30 October 2026, employers face liability for third-party harassment. Find out what changes and the practical steps businesses should take now.
Three coworkers in discussion at a conference table with a laptop and mugs in a modern office

Employment Rights Act 2025: What the new Sexual Harassment duty means for employers from 30 October 2026

September 25, 2026
From 30 October 2026 employers must take all reasonable steps to prevent sexual harassment and address third-party harassment. See what to do now.
A person in a white lab coat and pink gloves holds a small rainbow heart pin, with a stethoscope draped around their neck.

Did the use of NHS changing room by transgender woman give rise to claims for harassment and/or indirect discrimination?

February 3, 2026
Did the use of NHS changing room by transgender woman give rise to claims for harassment and/or indirect discrimination?
A person with long dark hair, wearing a green and orange patterned top, looks toward the camera against a black background.

Tribunal ruling puts ‘up or out’ employment policies under scrutiny

February 3, 2026
The appeal judgment criticised the original tribunal’s handling of both disability and justification issues. The judgment indicates that employers making dismissals based on assessment of readiness for promotion, without the employee having carried out the work for the role above, will struggle to show that decision is
A person smiling at the camera, wearing a green and orange patterned top against a dark, plain background.

Ms Sanju Pal succeeds in appeal against Accenture at the Employment Appeal Tribunal

January 19, 2026
Ms Sanju Pal succeeds in appeal against Accenture at the Employment Appeal Tribunal – Tribunal’s reasoning on disability discrimination due to endometriosis was “wholly inadequate” and the decision could not stand
Two hands wearing rainbow-colored bracelets come together to form a heart shape.

Non-binary identity does not give rise to the protected characteristic of gender reassignment

December 18, 2025
A tribunal ruled non-binary identity does not amount to gender reassignment. Learn the legal reasoning and workplace implications with Kilgannon Law.
The Houses of Parliament in London at dusk, with the illuminated Elizabeth Tower reflected in the River Thames.

The dismissal of a cleaner employed in two jobs working 17 hour days was fair

December 11, 2025
A tribunal has held that the dismissal of a cleaner working two jobs and 17-hour days was fair. Learn why the decision was upheld, the key factors considered, and what this means for employers managing fatigue and safety risks.
Show More