On 24th and 25th July, the Employment Appeal Tribunal (EAT) will hear a landmark whistleblowing claim that could extend protections to over 900,000 charity trustees who may need to expose corporate governance failures within their organisations.
Professor Nigel MacLennan brought the claim against the British Psychological Society (BPS). This case has the potential to extend the same whistleblowing protections currently enjoyed by workers and employees to the many trustees, school and NHS governors, and other volunteers who play crucial roles in upholding corporate governance and ethical standards.
Professor MacLennan, a former trustee and president-elect of the BPS, was expelled from the Society in May 2021. During his tenure, he uncovered significant corporate governance failings within the BPS, including potentially illegal activities, which he reported to the Charity Commission. His actions prompted the Charity Commission to make the first of four regulatory interventions within 11 days of his taking office. Despite his efforts, Professor MacLennan was dismissed from his position, causing severe damage to his reputation and career and significantly impacting his mental health.
Professor MacLennan was elected President by the Society’s 60,000 members on a pledge to reform the organisation. He highlighted issues such as a lack of oversight of the senior management team and their failure to provide trustees with legally required information. He said: “I believe I am acting with the best interest of the Society to protect the organisation from misgovernance by the senior management team and trustees – the governance is shot to hell.”
Professor MacLennan’s initial claim to an employment tribunal was unsuccessful, as the tribunal found that he was not protected under current whistleblowing legislation, deeming he was not a worker of the BPS. But in this appeal, Professor MacLennan and his legal team will argue that he entered into a contract with the BPS and was fulfilling his legal obligations by blowing the whistle. They will also assert that trustees should be protected from reprisals under Articles 10 and 14 of the European Convention on Human Rights (ECHR).
In 2021, it was reported in the Times that the BPS claimed Professor MacLennan’s expulsion was unrelated to his governance concerns, attributing it instead to findings of persistent bullying upheld by two independent investigations. Professor Carol McGuinness, who was then the interim chairwoman of the trustees, acknowledged serious grievances about Dr MacLennan’s behaviour: “As a Society we must be more transparent. I am also clear we need a major update of our governance.” A Society spokesperson added: “The expulsion of Professor MacLennan had no connection with the concerns he raised about the Society’s governance.”
Professor MacLennan described the allegations as “baseless and without merit”. His stance was supported by significant resignations within the Society, including Dr Hazel McLaughlin, who resigned as president citing family health reasons, and Dr David Murphy, who quit as vice-president due to governance oversight issues.
The significance of this case has been highlighted by the Judge of the Employment Appeal Tribunal, who, in allowing the appeal, ordered that the Government be invited to intervene due to the case’s substantial public interest implications.
Professor MacLennan said: “Charity trustees and trustees of other vital public organisations have a duty to report serious failings in the organisations they oversee and can face legal, personal, and professional liabilities if they fail to do so. Yet, in disclosing these failures, trustees are not provided with any legal protections and can face financial and career ruin, along with immense mental and emotional distress. This is what happened to me, and there is a serious anomaly that needs to be fixed if trustees are to effectively scrutinise the organisations they are obliged to protect without fear of life-ruining reprisals. If the current position remains unchanged, trustees will be deterred from taking up vital public offices, as they find themselves in the impossible position of having a legal duty to report wrongdoing but with no legal protections for doing so.”
Professor Nigel MacLennan is a Psychreg correspondent.
