A recent Employment Tribunal decision has confirmed that a charity trustee was not entitled to whistleblower protection. What does this mean for the charity sector?

Published: 12 March 2026
Authors: Robert Nieri

What is whistleblower protection?

The whistleblowing legislation in Great Britain provides protection for workers against being subject to a detriment, as well as protection for employees against dismissal, where the worker or employee makes a protected disclosure of information about malpractice by their employer or a third party, such as breach of a legal obligation, criminal offences or actions which present a danger to the health and safety of any individual.

Currently, a worker includes both an employee and an individual who works under any other contract where the individual agrees to perform personally any work or services for another party. Importantly, office holders are not treated as workers, although case law has established that whistleblower protection can be extended to cover holders of judicial office on grounds of their occupational status.

Within the charity sector, whistleblowing disclosures help the Charity Commission to detect serious problems such as fraud, safeguarding concerns and mismanagement in charities. Whilst the Commission seeks to encourage anyone connected with charities to raise concerns, the recent case of MacLennan v British Psychological Society could be seen as a deterrent to doing so for anyone not classed as a worker.

Background to the case

Dr MacLennan had been a member of the British Psychological Society for many years. He had concerns about how the Society was run and campaigned to be president-elect to address those concerns. He was also a trustee of the Society.

He was elected in May 2020, but his election remained confidential until ratified. He claimed to have made four protected disclosures in June 2020, followed by a further nine protected disclosures between July 2020 and December 2020 once his role as president-elect was ratified. Relations between Mr MacLennan and the Society deteriorated and, following an investigation into allegations of bullying, he was expelled from membership of the Society in May 2021, which terminated his role as both trustee and president-elect. He brought a claim in the Employment Tribunal on the basis that these actions amounted to detriments resulting from the protected disclosures that he had made. To progress the claims, he needed to demonstrate that he came within the definition of worker.

What was the outcome of the case?

Initially, it was held that Dr MacLennan was never a worker of the Society but rather a volunteer carrying out activities on a pro bono basis. As a result, the Employment Tribunal had no jurisdiction to hear his claim.

Dr MacLennan appealed to the Employment Appeal Tribunal (EAT) arguing that he should be treated as a worker, despite the absence of any written contract between himself and the Society. The EAT allowed the appeal and sent the case back to the Employment Tribunal for further consideration as to whether his position as a charity trustee was akin to occupational status, given the nature of the role, responsibilities and regulatory regime, such that the whistleblower protection could be extended to cover his role, as had been found to be the case with judicial office holders.

However, the Employment Tribunal has again held that Dr MacLennan is not entitled to whistleblower protection based on his status as a charity trustee. Although his position was similar to that of a worker in some respects, these factors were outweighed by others such as the fact he operated as a volunteer and was not paid by the Society, any retaliation against him could not include dismissal and he could raise concerns directly with the Charity Commission, which has statutory obligations to consider, investigate and act on any wrongdoing reported by a charity trustee. For these reasons, his position as a charity trustee was not the same as that of an employee or worker. The Employment Tribunal also decided that the status of a charity trustee did not count as occupational status, because their status was governed by law and the relevant regulatory framework. In particular, the Employment Tribunal was keen to avoid conflicts of interest that could arise where a charity trustee brings claims against their charity resulting in the charity’s funds being used to defend and potentially satisfy the claim. On this basis there was reasonable justification for excluding charity trustees from whistleblowing protection.

What does this mean for the charity sector?

If the Employment Tribunal had found in Dr MacLennan’s favour, this would have had significant implications for the charity sector and volunteers generally, opening up whistleblower protection to a much wider group of individuals. As it is, charity trustees and volunteers remain outside of whistleblower protections for the time being, which may make such individuals think twice before raising concerns.

This decision should not, however, be seen as a deterrent. Aside from this being a first instance decision and so not binding on other Employment Tribunals therefore allowing a future tribunal to reach a different conclusion, this decision does not mean charity trustees are left without any agency to challenge perceived wrongdoing.

As part of their role within a charity, charity trustees are required to act in what they consider to be the best interests of their charity’s purposes and while charity boards act collectively, the Charity Commission makes clear in its guidance that charity trustees should exercise independent judgement and feel able to give their views, raise concerns and to challenge. If they strongly disagree with a decision the charity board has made, they should ask for this to be recorded in the minutes of the meeting, and sometimes they may disagree so strongly with a decision that they have no choice but to resign. Charity trustees should also bear in mind required behaviours under the recently revised Charity Governance Code (which is good practice but not legally binding), in particular Principle 4 ‘Ethics & Culture’, a requirement that charity trustees should speak up when they have concerns about the charity’s governance or operations.

There may still be circumstances where it is not possible for a concern to be properly addressed within a charity and as mentioned charity trustees can report issues to the Charity Commission that have happened, are happening or are likely to happen and that could seriously harm the people a charity helps, its staff or volunteers, the services it provides, or its assets or reputation. The Charity Commission is a ‘prescribed person’ making it the regulatory body for appropriate disclosures on matters relating to ‘the proper administration of charities and funds given, or held, for charitable purposes’. It is noteworthy that 46% of whistleblowing disclosures made to the Commission between 1st April 2024 and 31st March 2025 were received from non-employees (46%), which include trustees.