Charity trustees play a vital role in safeguarding the organisations they oversee, including speaking up when something goes wrong. But what protection do they have if raising concerns leads to conflict or adverse treatment?
A recent Employment Tribunal decision has provided further guidance on whether trustees can qualify for whistleblowing protection and what charities should do in practice.
In January 2025, our colleague Katherine Irvine reported on the decision of the Employment Appeal Tribunal (EAT) in MacLennan v British Psychological Society - Can charity trustees be protected as whistleblowers?. As Katherine highlighted, “This case could pave the way for protection to be extended to charity trustees, empowering them to speak out against misconduct within the organisations they oversee”.
As set out in her article, the outcome of the EAT decision was that potentially, charity trustees could be protected by the applicable whistleblowing legislation. The EAT stated that there “was a strong argument that being a charity trustee … is akin to an occupational status”.
It found that the ET had focused almost entirely on the absence of remuneration and the fact that Mr MacLennan acted as a volunteer. The EAT remitted the claims back to the ET for reconsideration. It noted that “the nature of the role, responsibilities and regulatory regime applied to charity trustees, is strongly suggestive of” worker status.
The ET has now reconsidered the case and found that Dr MacLennan was not entitled to whistleblower protection in his status as a charity trustee. This reflected the position taken in the case by the government and the Charity Commission for England and Wales (CCEW), which intervened in the proceedings and expressed the view that it was not the intention of the legislation that whistleblowing protections should extend to charity trustees.
So, what’s next?
ET decisions are persuasive but not binding on other tribunals, so a future case on this issue may be decided differently. As it stands however, the standard approach remains that charity trustees are not protected as whistleblowers.
A thread that ran through the decision was that trustees already have clear channels through which to raise concerns externally with a regulator, in this case, the CCEW.
Emphasis was placed on the regulatory role of the CCEW and that the view that the preferred route for charity trustees who have concerns is under charity law, rather than importing employment law concepts into a charity law context.
Under Scottish charity law, if a charity trustee believes there has been a breach of duties by other trustees, whether a significant breach or persistent breaches, they must take steps to ensure that the breach is rectified (if possible), that the breach doesn’t happen again and, in the most serious cases, ensure that the trustee in breach is removed from office.
Although different in name and procedure, both OSCR and the CCEW have processes in place for trustees (and others) to raise concerns about their charities directly with them, allowing the regulators to exercise their regulatory muscle within their express statutory remit.
As in employment relationships however it’s usually preferable for concerns to be raised and addressed internally where possible and facilitating this is a sensible step.
What does this mean for charity boards in practice?
Few would argue that the ability for trustees to raise concerns internally and to have them addressed is a bad thing or that they should be penalised for doing so. Putting that into practice can be trickier, whether because of personality issues on boards or concerns over repercussions.
Trustees must, however, be conscious of their duties to act in the best interests of the charity, which includes proactively raising concerns of a whistleblowing nature and being open to concerns raised by other trustees. Promoting a culture of openness and transparency is key.
Although at present it is not settled that trustees are protected as whistleblowers, this may change either in general or in individual circumstances. We therefore recommend either extending whistleblowing processes to trustees or implementing an equivalent policy specifically for trustees.
This should provide clear reporting lines and assurances that they will not be subject to retaliation or detriment.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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