The case of Dr. Nigel MacLennan v The British Psychological Society revolves around the legal question of whether Dr. MacLennan, elected as President-Elect of the British Psychological Society (BPS), should be considered a worker under UK employment law, thereby entitling him to protection against detriment for making protected disclosures, commonly known as whistleblowing. This case was heard by the Employment Appeal Tribunal (EAT) and involved complex issues around employment status, whistleblowing protections, and the interpretation of the European Convention on Human Rights (ECHR).
Background
Dr. Nigel MacLennan, a psychologist and long-standing member of the BPS, was elected as President-Elect in 2020. His role was part of a three-year commitment, transitioning from President-Elect to President, and finally to Vice-President. The BPS is a registered charity with a Royal Charter, responsible for developing and promoting psychology in the UK, and governed by a Board of Trustees, including the President, President-Elect, and other key positions.
Dr. MacLennan raised concerns about the management of the BPS and made several protected disclosures between June and December 2020. These disclosures related to issues he believed were in the public interest, such as potential legal violations by the BPS. Following these disclosures, tensions arose between Dr. MacLennan and the Senior Management Team (SMT), leading to a grievance filed against him. An investigation ensued, and Dr. MacLennan was eventually expelled from the BPS, terminating his role as President-Elect.
Legal Issues
The primary legal issue in this case was whether Dr. MacLennan should be considered a "worker" under the Employment Rights Act 1996 (ERA), which would entitle him to protection against detriment for making protected disclosures. The ERA defines a worker as someone who has entered into or works under a contract of employment or any other contract whereby they undertake to do or perform personally any work or services for another party.
Dr. MacLennan argued that his role as President-Elect constituted worker status, as he was performing services for the BPS. He contended that his expulsion was a result of his whistleblowing activities, which should be protected under the ERA. However, BPS argued that there was no intention to create a contractual relationship with Dr. MacLennan and that his role was more akin to that of a volunteer or trustee, which does not fall under the definition of a worker.
Tribunal findings and EAT Decision
The Employment Tribunal initially found that Dr. MacLennan was not a worker of the BPS, as there was no intention to enter into a contractual relationship. The Tribunal also considered whether Dr. MacLennan’s treatment could be seen as less favourable compared to others in similar positions, under Articles 10 and 14 of the ECHR, which concern freedom of expression and prohibition of discrimination, respectively. The Tribunal concluded that there was no analogous situation between Dr. MacLennan and employees or limb B workers, and thus his treatment did not constitute discrimination.
Appeal and EAT's judgment on remission
On appeal, Dr. MacLennan argued that the Tribunal failed to adequately consider the circumstances and conduct a broad assessment necessary to determine his status as a worker. The EAT upheld part of the Tribunal’s decision, agreeing that there was no intended contractual relationship between Dr. MacLennan and BPS, affirming that volunteer trustees are generally not considered workers under ERA protections.
However, the EAT did remit part of the case back to the Employment Tribunal, finding that it had inadequately considered Dr. MacLennan’s status under ECHR Articles 10 and 14. The EAT indicated that the Tribunal should reassess whether Dr. MacLennan’s role as a trustee and President-Elect might constitute "other status" akin to an occupational classification that could qualify for protections under the ECHR. Specifically, the EAT directed the Tribunal to use a broad-brush approach, examining comparable roles and justifications for differential treatment under the law.
EAT clarifications on protected disclosures
The EAT clarified that, under UK law, a worker is protected from detriment by their current employer for making a protected disclosure, even if the disclosure was made before the commencement of employment. Nevertheless, this protection did not apply to Dr. MacLennan because he was not considered a worker.
Additional considerations
Public interest and charity sector concerns: The EAT acknowledged the importance of whistleblowing protections, especially in the charity sector, where trustees might risk detriment without clear avenues for remedy. This case highlighted the challenges charity trustees and volunteers face, as they often hold positions of public trust but lack standard employment protections.
Broad assessment of analogous situation and justification: The EAT found that the Tribunal should have adopted a more comprehensive assessment in determining whether Dr. MacLennan’s role as a charity trustee was comparable to employees or limb B workers. Relevant factors to be considered included the level of responsibility, duties, likelihood of encountering wrongdoing, public interest in disclosures, risk of retaliation, and potential reputational impact.
Human rights implications: By remitting the ECHR element, the EAT underscored the role of human rights in employment disputes, particularly regarding freedom of expression and discrimination. The Tribunal is now directed to explore if the differential treatment in protections for charity trustees like Dr. MacLennan can be objectively justified, given the distinct public interest considerations at play in such roles.
Conclusion
The case of Dr. Nigel MacLennan v The British Psychological Society serves as a significant example of the complexities in determining employment status and whistleblowing protections. The EAT’s judgment highlights the importance of a clear contractual framework to establish worker status and reveals potential limitations in protections for individuals who, despite holding roles of public accountability, fall outside conventional employment definitions. This case emphasises the need for broader protections and a clear framework for whistleblowing in non-traditional roles, especially within the charity sector.
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