There has been a very significant decision by the Employment Appeal Tribunal (the EAT). This could affect the role of trustees and office-holders in charities, including churches. It potentially means that trustees have protection as “whistleblowers”. It may mean that trustees would be entitled to other protections in the future – though that is less certain. The issues are set out below.
There are a number of remedies and protections for employees and workers in the Equality Act 2010. The EAT has made a decision that in principle this right could extend further to a trustee (providing his or her services voluntarily and not under a contract). Applying the EAT’s rationale, Trustees, Elders, Ministers and other staff who are office holders rather than employees or workers, and also volunteers, could have some of the same remedies and protections as employees and workers.
The case before the EAT (MacLennan v British Psychological Society (Protect and anor intervening) was considering specifically protection for a trustee making a public interest disclosure (whistleblowing). It seems probable that similar arguments could be used to challenge current case law around office holders and volunteers not having status to pursue discrimination and other detriment claims (for example, there is an existing Court of Appeal authority (which binds the EAT) that volunteers are not covered by the Equality Act, because of the absence of a contract).
The decision does not mean that all these groups of people will automatically have all these rights, but it opens the door to individuals establishing that they do. The EAT gave guidance that whether the trustee, in wishing to pursue a whistleblowing claim (in this case), was in an analogous situation to an employee/worker was likely to be relevant to determining the issue. They said this would mean considering:
- the type of role undertaken and level of responsibility;
- their duties;
- the likelihood they will become aware of wrongdoing (which would appear quite high for most trustees);
- the importance of their being able to ‘blow the whistle’ on wrongdoing;
- their vulnerability to being victimised for making a protected disclosure, including the extent their livelihood/reputation might be at risk;
- whether there were alternative routes for them to make public interest disclosures, and any protections for them associated with that;
- and any other relevant distinction between the nature of their role and an employee/worker.
In the EAT’s view, there was a strong argument that a charity trustee was akin to an occupational status, given the nature of the role, responsibilities and regulatory regime.
We felt this was important decision that merited making our clients aware. We are continuing to consider the decision and its implications for churches and Christian charities and intend to provide further guidance in due course.
In the meantime, whilst we would not expect policies to intentionally exclude trustees and other office holders – because of the desire to encourage all to be able to raise concerns about wrongdoing, it would be sensible to review any existing whistleblowing policies to ensure that they are understood as also being relevant for trustees and office holders who may wish to raise concerns.
