Charity trustees and whistleblowing: what the MacLennan case means for your organisation
The Legal Position
The recent employment tribunal decision in MacLennan v British Psychological Society confirmed that a charity trustee could not claim whistleblowing protection under the Employment Rights Act 1996. On these facts, the tribunal found that, unlike an employee or worker, a trustee who raised concerns about alleged wrongdoing would have no recourse to the employment tribunal if they suffered a detriment.
The case centred on a trustee expelled after raising alleged governance concerns, with the tribunal ruling that trusteeship, a voluntary role, is not analogous to employment. Both the government and the Charity Commission intervened in proceedings, arguing strongly that Parliament had not intended whistleblowing protection to extend to charity trustees. The tribunal agreed, making clear that any change to the legal position is a matter for Parliament. Although this is a first instance decision which is limited to its facts, given the strength of opposition from both the government and the regulator, charities should plan on the basis that the law is unlikely to change through the courts in the near term.
Why This Still Matters
The absence of formal legal protection does not mean that concerns raised by trustees can be ignored or mishandled. How a charity responds when a trustee raises concerns remains critical, and poor handling can lead to serious consequences, including:
- Regulatory scrutiny. The Charity Commission has broad powers to investigate governance failures, particularly where concerns relate to financial mismanagement, safeguarding, or conflicts of interest. A charity that is seen to have suppressed or retaliated against legitimate concerns will attract unwelcome attention.
- Reputational damage. Public trust is the foundation of the charity sector. Whistleblowing disputes that become public, whether through media coverage or regulatory findings, can cause lasting harm to a charity’s standing and its ability to attract donors and volunteers.
- Board dysfunction. If trustees do not feel confident that their concerns will be heard and dealt with constructively, problems are more likely to go unaddressed. This can lead to a breakdown in board relationships and resignations.
- The MacLennan decision underlines the importance of having clear, trusted routes for raising concerns at trustee level. The law may not require charities to offer formal whistleblowing protections to trustees, but many well-governed charities will want to do so voluntarily as part of a broader commitment to transparency, accountability and effective risk management.
What Charities Should be Doing Now
- Following the decision made in MacLennan, charities should take the following steps:
- Review trustee code of conduct and internal reporting guidance’s to ensure these clearly set out how to report concerns.
- Establish escalation mechanisms to ensure there is an alternative route where the chair or chief executive is concerned.
- Provide training for trustees and senior members which covers how concerns should be received, investigated and resolved.
- Ensure all decisions are documented carefully.
- As a first instance tribunal decision, MacLennan is not the final word. The legal position could change through future cases or Parliament deciding to legislate. However, for now, charities that prioritise transparent governance and trusted internal processes will not only reduce their exposure to regulatory and reputational risk but will encourage the kind of culture in which serious concerns can be effectively addressed.
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Disclaimer
This information is intended for general informational purposes only and does not constitute legal advice. We recommend seeking professional advice before taking any action on the information provided. If you would like to discuss your specific circumstances, please feel free to contact us on 0800 2800 421.
