A recent Employment Tribunal decision has provided important clarification on whether charity trustees are protected under UK whistleblowing law.
In Maclennan v British Psychological Society (2026), the tribunal considered whether a charity trustee could bring a whistleblowing detriment claim under the Employment Rights Act 1996 (ERA 1996). The outcome highlights the limits of statutory protection and raises key considerations for charities when handling concerns raised at trustee level.
The Facts
Dr MacLennan, a member of the British Psychological Society (BPS), was elected president-elect in 2020. This role also made him a charity trustee.
After raising concerns about governance within the organisation, relationships broke down. He was subsequently expelled from membership, which brought his roles within the organisation to an end.
Dr MacLennan brought a claim in the Employment Tribunal, alleging that he had suffered a whistleblowing detriment under the ERA 1996.
Tribunal and Employment Appeal Tribunal (EAT)
At the initial hearing, the tribunal found that Dr MacLennan was not a “worker” under section 230(3) ERA 1996. The key factors were:
His role was voluntary and unpaid
There was no intention to create a legal working relationship
Dr MacLennan appealed.
The Employment Appeal Tribunal (EAT) allowed the appeal, drawing on the Supreme Court decision in Gilham v Ministry of Justice. In Gilham, whistleblowing protection was extended to judicial office holders where excluding them would breach Articles 10 and 14 of the European Convention on Human Rights (ECHR).
The EAT criticised the tribunal for failing to adopt a sufficiently broad approach when considering whether the trustee role was analogous to that of a worker. The case was therefore sent back to the tribunal for reconsideration.
Tribunal Decision on Remission
On reconsideration, the tribunal again concluded that Dr MacLennan was not entitled to whistleblowing protection.
While acknowledging that trustees may:
Become aware of wrongdoing; and
Play a key role in raising concerns
the tribunal found that their position is fundamentally different from that of employees or workers.
Trustees:
Act in a governance and oversight capacity
Do not work under direction in the same way as employees
Are typically volunteers rather than individuals “in work”
The tribunal also highlighted that trustees have alternative routes to raise concerns, including reporting directly to the Charity Commission.
Justification for Different Treatment
The tribunal accepted that trustees could fall within “other status” under Article 14 of the ECHR.
However, it held that excluding trustees from whistleblowing protection under the ERA 1996 was objectively justified, particularly due to:
The governance role trustees hold
The potential for conflicts of interest if trustees bring claims against their own charities
What Should Charities Be Aware Of?
This decision is a useful reminder that whistleblowing protection under the ERA 1996 is primarily designed for individuals who are “in work”, and will not usually extend to charity trustees.
However, this does not mean concerns raised by trustees can be treated informally or dismissed.
From a governance and risk perspective, charities should:
Implement robust reporting procedures so trustees can raise concerns in a structured way
Maintain transparent decision-making processes to minimise disputes
Provide clear guidance on how trustees should escalate concerns
Review whistleblowing or “speak up” policies to ensure they include trustees and volunteers, even where statutory protection does not apply
Final Thoughts
The Maclennan decision clarifies an important gap in whistleblowing protection for charity trustees. While trustees may not benefit from statutory protection under the ERA 1996, their role in identifying and raising concerns remains critical.
For charities, the key takeaway is clear: strong governance and clear reporting frameworks are essential to managing risk and maintaining trust at board level.
If you would like support reviewing your whistleblowing procedures or strengthening trustee governance, we’re here to help.
Speak to our team about how we can support your organisation through our Charity HR Hub events and Watertight HR & Legal fixed fee packages.
