A trustee who reported concerns to the regulator about his charity is to appeal a landmark employment tribunal decision that he is not entitled to whistleblowing protection.

Former British Psychological Society (BPS) trustee and president elect Dr Nigel MacLennan had raised concerns around its finances and governance with the Charity Commission.

But in 2021 he was later removed from his role amid allegations of bullying, which he denies.

In its ruling made at the end of last month the tribunal decided that as a trustee, rather than a member of staff, he could not claim whistleblowing protection under the 1996 Employment Rights Act (ERA).

“Having considered these matters, I find that the balance weighs in favour of finding that there is reasonable justification for excluding charity trustees from the benefits of the ERA in relation to public interest disclosures,” said Judge Butler.

In a statement following the decision Dr MacLennan’s legal team has confirmed they will appeal the ruling, which they say means all trustees, as unpaid volunteers without formal employment contracts “do not qualify for such shields against reprisals”.

“This outcome ignores the unique vulnerabilities of trustees, who are often the first to uncover governance failures, financial improprieties, or ethical breaches within organizations reliant on public trust and funding,” they added.

They said that the tribunal’s decision was made despite arguments made invoking the European Convention on Human Rights around “freedom of expression and non-discrimination”.

Chris Milsom and Emma Darlow Stearn of Cloisters Chambers, who are acting for Dr. MacLennan, said: “Charity trustees have a legal obligation to disclose suspected wrongdoing in the charities they govern.

“This obligation reflects the fact that, by virtue of their role and responsibilities, they are likely to encounter information that it is in the public interest to disclose. They are vulnerable to retaliation for whistleblowing and currently receive no protection from the same.

“The central proposition in this significant appeal is that those who are providing such important work and under a heightened obligation to disclose wrongdoing because of their insider knowledge should receive reciprocal protection.

“This is not at odds with the legislative purpose of whistleblowing protection but, rather, helps advance it.”

Charity welcomes tribunal’s judgement

A spokesperson for the British Psychological Society said the tribunal’s judgement “provides confirmation on the legal position regarding whistleblowing rights for charity trustees, following an appeal by the claimant on this specific point”.

“We recognise the public interest in this case and its impact on the wider charity sector and note the valuable contribution of the Charity Commission and the Secretary of State for Business, who acted as interveners in the case,” they added.

“This case follows two independent investigations which upheld allegations of bullying against Dr MacLennan, ultimately leading to his expulsion from the British Psychological Society (BPS).

“The BPS takes its governance responsibilities extremely seriously and is committed to maintaining a safe, respectful and transparent professional environment.”

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