A Warning to Employers with Trustees

Recent Case Highlights Whistleblowing Protections for Trustees

In a recent case heard by the Employment Appeal Tribunal (EAT), it was held that an Employment Tribunal was wrong to find that a charity trustee was precluded from bringing a whistleblowing claim under the Employment Rights Act 1996, on the basis that they were not an employee or worker as defined in the Act.

Background 

The Claimant “M” was a charity trustee appointed in the role of President-Elect. He brought a claim in the Employment Tribunal on the basis that he should be treated as a worker and therefore protected against being subject to detriment done on the grounds of making a protected disclosure.

Initial Tribunal’s Findings

The initial Tribunal concluded that there was no evidence of a contractual relationship between the parties, focusing almost entirely on the lack of remuneration that the Trustee received and the fact that they were a volunteer. He was therefore barred from raising a whistleblowing claim.

The EAT’s View 

The EAT held that the Tribunal was right to conclude that the parties did not have an intention to enter into a contractual relationship, and therefore M did not fall within the strict definition of ‘worker’. However, they had failed to consider the definition of worker ‘purposively’, which would mean taking account of the Trustee’s rights under the European Convention on Human Rights (ECHR), particularly Articles 14 (Prohibition on Discrimination) and 10 (Freedom of Expression).

The EAT was of the view that the initial Tribunal should have adopted a ‘broad-brush’ approach in considering whether M was in an analogous situation to an employee or worker. The Tribunal should have considered other various factors, such as:

• Type of role undertaken and the level of responsibility;
• The duties of that role;
• The likelihood that the person will become aware of wrongdoing;
• The importance of the person making disclosures of wrongdoing in public interest.

Therefore, the Tribunal was wrong to dismiss M from bringing a whistleblowing claim under the Employment Rights Act 1996.

The Legal Reasoning 

When concerning the applicability of the ECHR, occupational classification can be a status triggering protection from discrimination under Article 14.

However, any individual wishing to rely on Article 14 must show that the facts of their case fall within the ambit of one of the other ECHR rights, that they have been treated less favouringly than others in an analogous situation, and the reason for that less favourable treatment is some ‘other status’ (and that the employer has no reasonable justification for that difference).

The EAT’s view was that there is a strong argument that being a charity trustee is akin to an occupational status, given the nature of the role, responsibilities and regulatory regime.

Outcome 

Therefore, the EAT remitted the case to the Tribunal, on the basis that they had failed to adequately consider the relevant circumstances and conduct the broad-brush assessment necessary to decide whether there was an analogous situation between M and employees/workers, and therefore whether being a charity trustee is an ‘other status’. The Tribunal should also consider the issue of reasonable justification for less favourable treatment.

Implications 

We therefore wish to bring this to the attention of any of our clients whom engage Trustees, that although their status may not appear on the face of it to be a ‘worker’ or an ‘employee’, they may still be afforded similar protections in law where there is an analogous situation between their role and the duties expected of them to a worker, irrespective of whether they receive remuneration for their service.

Next Steps for Employers 

If your organisation engages trustees, now is the time to consider any structures you have supporting them, and any policies and procedures regarding whistleblowing protections and disclosures.

For tailored advice, please contact our Employment team. We can help you navigate this complex area of law and ensure your practices align with the latest legal interpretations.

If you have any particular concerns or wish to seek further advice, please do not hesitate to get in touch with Gracie Coleman (gcoleman@wolferstans.com) who would be happy to assist.