Dr Maclennan v The British Psychological Society

An office-holder is a worker under section 230(3)(b) of the Employment Rights Act 1996 only if the parties intended a contractual relationship. That question requires an overall assessment of the manner of engagement, the source and character of the governing rules, the wider context and other relevant circumstances.

For Article 14 read with Article 10 ECHR, whether the claimant is in an analogous situation to workers, and whether an office-holder has an “other status”, require a broad-brush assessment. Remuneration and voluntary service are relevant but are not determinative. The tribunal should also consider whether justification is the more appropriate focus.

A current worker is protected against detriment for a protected disclosure made to that employer before the employment began.

The claimant, a psychologist and charity trustee, was elected President-Elect of the respondent charity. He was to serve in the Presidential Team and expected later to become President. He alleged that he made protected disclosures before and during his tenure, and that his expulsion from membership, which ended his trustee and President-Elect roles, was retaliatory.

The Employment Tribunal held at a preliminary hearing that he was not a worker and therefore had no jurisdiction over his whistleblowing detriment claims. It also rejected his contention that Article 14 read with Article 10 ECHR required him to be treated as a worker.

The appeal concerned whether an implied contractual worker relationship existed, whether the Convention required whistleblowing protection despite the absence of a contract, and whether protection extended to disclosures made before a worker began employment.

1. Appeal allowed in part. The Employment Tribunal was entitled to hold that the claimant was not a contractual worker. The fundamental question for an office-holder was whether the parties intended to enter into a contractual relationship. On a fair reading, the tribunal had answered that question for both the President-Elect role and the prospective Presidency.

   It was entitled to consider election rather than a formal engagement, the governing Royal Charter, Statute and Rules, the voluntary and pro bono character of trusteeship, the limited and contingent compensation for loss of earnings, the absence of an obligation that every President-Elect become President, and the extent of the duties. Those matters supported its overall conclusion that there was no contractual intention.

2. The tribunal nevertheless erred in rejecting the Article 14 and Article 10 claim. It identified the four questions approved in Gilham, and it was agreed that the facts fell within the ambit of Article 10. However, it did not conduct the required broad-brush assessment of whether the claimant was in an analogous situation to employees or limb (b) workers, or whether charity trustee, President-Elect and President status was an “other status”.

   The tribunal focused almost entirely on the absence of remuneration and the voluntary nature of the role. Those were relevant, but not conclusive. Relevant circumstances included the role’s responsibility and duties, access to information about wrongdoing, public interest in disclosures, vulnerability to retaliation including reputational harm, alternative disclosure routes and protections, and other material distinctions. It should also have considered whether justification was the appropriate focus. Ground 3 was upheld.

3. A worker is protected by section 47B of the Employment Rights Act 1996 where the current employer subjects that worker to detriment because of a protected disclosure made to that employer before employment commenced. A purposive construction avoids an unjustified gap in protection. Ground 4 was allowed.

4. The Article 14 and Article 10 issue was remitted to the same Employment Tribunal. It had made substantial findings of fact and was best placed to decide whether further evidence or interventions, including on justification, were required.

• Employment Appeal Tribunal: Allowed the appeal in part. The contractual worker-status decision was upheld, but the Article 14 and Article 10 issue was remitted to the same Employment Tribunal.
• Employment Tribunal: Employment Judge M Butler, judgment sent on 26 April 2023, held that the claimant was not a worker and that it lacked jurisdiction over his protected-disclosure detriment complaints.