Whistleblowing: protected disclosures before employment

It is well established that workers are protected from being subjected to a detriment because they have made a protected disclosure.

In MacLennan v The British Psychological Society, the Employment Appeal Tribunal (EAT) considered whether this protection could apply to disclosures made before the commencement of a role and whether they were protected due to the status of the Claimant’s relationship with the Respondent.

Background

Dr MacLennan was appointed as a charity trustee of the British Psychological Society (BPS). He had concerns about how the BPS was run. In 2020, he campaigned to be elected President-Elect to address these concerns. He was successful and took up his unpaid, voluntary role on 30 June 2020.

He had made four protected disclosures between 3 June and 19 June 2020 – before the commencement of his role – and a further nine protected disclosures between 1 July and 17 December 2020.

The relationship between Dr MacLennan and the Senior Management Team became strained, and a grievance was raised against him. Following an investigation, he was expelled from membership of the BPS, terminating his role as a trustee and President-Elect.

Employment Tribunal

The Employment Tribunal (ET) found that Dr MacLennan did not have whistleblowing protection. He was not an employee or worker, nor did he have protection under a broader category afforded when the European Convention on Human Rights (ECHR) rights apply.

He appealed to the EAT.

Employment Appeal Tribunal

The EAT held that, in determining the status of the relationship, the ET had failed to consider factors such as the role’s responsibilities, the likelihood of encountering wrongdoing, the importance of making public interest disclosures and the risk of retaliation. On this point, the EAT sent the case back to the ET to reconsider Dr MacLennan’s eligibility for whistleblowing protection, indicating that “there is a

strong argument that being a charity trustee, President-Elect and/or President is akin to an occupational status”.

The EAT further held that a worker is protected from being subjected to a detriment by his current employer for making a protected disclosure to that employer before the commencement of the employment.

Comment

When a complaint is made that qualifies as a protected disclosure, as an employer, you must be mindful that protection is afforded more widely than you might expect.

Individuals who do not, at first glance, appear to be workers could be protected. This could extend to charity trustees, officeholders, volunteers, and others.

You should also be careful not to disregard whistleblowing complaints before the commencement of the relevant engagement with your organisation.

An unsuccessful job applicant would not be protected. Someone who, however, whistleblows before taking up a role will be protected from any subsequent detriment linked to that protected disclosure occurring once the role has commenced.

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