In a landmark decision, the Employment Appeal Tribunal has opened the door to charity trustees being protected under whistleblower laws.
Background
Employees, workers, agency workers and certain other other categories of individual are protected under UK whistleblowing laws, meaning that they can bring claims in the Employment Tribunal if they are subjected to a detriment for having made a protected disclosure. However, trustees and volunteers are not covered by the definition in the legislation.
However, a Supreme Court ruling in 2019 held that whistleblowing law should be interpreted so as to give protection to certain office-holders (such as judges, in that case) to give effect to the right to freedom of expression in the European Convention on Human Rights.
Now, applying the same principles, the Employment Appeal Tribunal has held that charity trustees may also be entitled to protection. The issue will need to be reconsidered by the Employment Tribunal, so we don't have a definitive outcome, but the Employment Appeal Tribunal has given a clear steer that this is likely to be the outcome.
What does this mean in practice?
If the Tribunal confirms that the trustee should be treated as protected under whistleblowing law, it will be a boost for charity trustees. Because of their role in governance, trustees may well come across compliance breaches or unlawful conduct. It's essential that they are able to raise concerns and have them investigated without fear of retaliation. As the Employment Appeal Tribunal recognised, the fact that trustees are often unpaid doesn't mean they have nothing to lose. Damage to reputation and the loss of a valued role and network can be just as significant as loss of an income. Whatever the outcome of this particular case, charities should ensure that they have effective whistleblowing procedures in place and that trustees can utilise them.
The EAT's comments in the case are also likely to boost the chances of a decision establishing that non-executive directors are protected under whistleblowing law, under the same principles. Again, this is a significant gap in the existing framework and would be a major boost for good corporate governance.
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