Extension of Whistleblowing Protection

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

Article by

Louise Maynard

lm@kilgannonlaw.co.uk

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