The Employment Tribunal will this week determine whether charity trustees should receive whistleblower protections under the Employment Rights Act 1996, in a landmark case that could safeguard over 900000 UK trustees. The hearing, scheduled from 10th to 15th September 2025, follows Dr Nigel MacLennan’s successful appeal to the Employment Appeal Tribunal (EAT) in October 2024 against the British Psychological Society (BPS). MacLennan, a former trustee and president-elect, claims his expulsion from the BPS in May 2021 was retaliation for reporting serious corporate governance failings, including potentially illegal practices, to the Charity Commission.
The case hinges on whether trustees, who lack formal worker status under employment law, should be protected from detriment when blowing the whistle, invoking Articles 10 and 14 of the European Convention on Human Rights. The EAT ruled that the original tribunal failed to adopt a broad perspective, focusing too narrowly on MacLennan’s unpaid volunteer status. It directed the tribunal to weigh responsibilities of trustees, their likelihood of uncovering wrongdoing, the public interest in disclosures, and their vulnerability to retaliation.
MacLennan, a BPS member since 1984, was elected president-elect on 4 May 2020, with his role ratified on 30 June 2020. He made four protected disclosures between 3 and 19 June 2020, and nine more between 1 July and 17 December 2020. After a grievance process, he was expelled on 4 May 2021. He says this caused “profound damage to his reputation and career” and harmed his mental health. He argues that trustees, who are legally obligated to report wrongdoing, face severe personal and professional risks without protection.
MacLennan’s legal team, Chris Milsom and Emma Darlow Stearn of Cloisters Chambers, contend that trustees’ insider roles make them likely to encounter wrongdoing and therefore require whistleblower protections. They argue that denying such protections breaches ECHR rights. The Charity Commission and whistleblowing charity Protect have intervened, with Protect citing helpline data: as of June 2024, it had received 2137 calls from charity workers and trustees, and more than half of 139 who raised concerns reported victimisation, bullying, or resignation.
Dr MacLennan said: “There is currently a serious anomaly in the law where charity trustees have a duty to report concerns of 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, they are not currently provided any legal protections and can face financial and career ruin, on top of immense mental and emotional distress as a result. I am hopeful that the Employment Tribunal will extend the same whistleblowing protections to charity trustees to ensure that they can be effective in undertaking the essential scrutiny of the organisations they are obliged to protect, without fear of life-ruining reprisal.”
Milsom and Stearn added: “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. Our central case 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.”
The Charity Commission has acknowledged the public importance of the case but warns that extending protections could create financial burdens for charities. The Secretary of State may also intervene. A ruling in MacLennan’s favour could reshape charity governance, enabling trustees to report issues like fraud or mismanagement without fear, but it may also increase charities’ legal and financial obligations.
The tribunal’s decision, expected after the hearing, could set a precedent for trustee protections across the UK charity sector.
