Dr Maclennan v The British Psychological Society

This appeal concerned whether a charity trustee elected as President-Elect of a charitable body fell within the statutory definition of a "worker" for the purposes of the whistleblowing protections in the Employment Rights Act 1996 (in particular s.47B read with ss.43A–43H and s.230). The Employment Appeal Tribunal upheld the Employment Tribunal's factual conclusion that there was no intention to enter into a contractual relationship and therefore no implied worker contract, applying the Gilham framework for office-holders and the relevant statutory tests in s.230 ERA.

The EAT allowed in part the appeal on human rights grounds and remitted the Article 10/Article 14 (ECHR) point for reconsideration because the Employment Tribunal had not applied the required "broad-brush" analysis of whether the claimant was in an analogous situation to employees or limb (b) workers or whether charity trusteeship/Presidency amounted to an "other status"; the tribunal had focused unduly on lack of remuneration. The EAT also allowed the claimant’s narrower point that a worker is protected against detriment by a current employer for disclosures made to that employer prior to the commencement of employment.

The appellant, a long-standing member and elected President-Elect of the British Psychological Society (the society), claimed whistleblowing protection after his election and subsequent expulsion from membership. The Employment Tribunal (Employment Judge M Butler) held he was not a "worker" under s.230 ERA and therefore lacked tribunal jurisdiction to hear his detriment claims under s.47B ERA. The claimant also relied on Article 10 read with Article 14 ECHR as an alternative route to protection.

Nature of the application: appeal on points of law to the Employment Appeal Tribunal that the Employment Tribunal erred in (1) finding no contract/worker status, (2) failing to imply a contract, (3) failing to give effect to Article 10 read with Article 14 and (4) failing to recognise protection for disclosures made to a future employer prior to commencing work.

Issues framed by the court:

• Whether the claimant had entered into, or worked under, a contract (express or implied) such as to be a "worker" under s.230 ERA;
• Whether, applying the Gilham approach to office-holders, the parties intended to enter into a contractual relationship;
• Whether Article 10 read with Article 14 required reading down or extension of protection to non-contractual office-holders in the charity context (the Michalak questions: ambit, analogous situation, status and justification);
• Whether a worker is protected from detriment by a current employer for disclosures made to that employer before the employment started.

Court's reasoning and conclusions:

• On contract/worker status the EAT concluded the Employment Tribunal had properly applied the relevant legal tests (including Gilham) and was entitled to conclude there was no intention to create legal relations and hence no contract. The tribunal legitimately considered the manner of engagement (by election), the governing documents (Royal Charter, Statute and Rules), regulatory context for charity trustees and the pro bono expectation for trustees. The absence of guaranteed remuneration and the limited and variable duties were relevant and not determinative against the Employment Tribunal's overall conclusion.
• On Article 10/Article 14 the EAT held that, although the tribunal asked the correct Michalak questions, it failed to adopt the required "broad-brush" analysis of whether the claimant was in an analogous situation to employees or limb (b) workers and whether the occupational position of charity trustee/President-Elect/President could amount to an "other status". The tribunal had focused too narrowly on lack of remuneration and volunteer status and had not sufficiently considered surrounding circumstances (role, responsibilities, likelihood of becoming aware of wrongdoing, vulnerability to retaliation and alternative routes of protection) or explored justification. Ground 3 was therefore allowed and the matter remitted for rehearing on those points.
• On the narrower temporal protection point the EAT concluded that a worker is protected from detriment by a current employer for making a protected disclosure to that employer prior to the commencement of employment (ground 4 allowed), adopting a purposive construction of the statutory regime and in line with authorities addressing post-termination disclosures.

Disposition: appeal allowed in part; the ET's decision that there was no contract is upheld; the Article 10/14 issue is remitted for reconsideration; the temporal protection point is allowed.

Appeal allowed in part. The EAT upheld the Employment Tribunal’s factual and legal conclusion that the claimant was not a worker on ordinary principles (no intention to create contractual relations), and thus there was no implied worker contract at the time he served as President-Elect. However, the EAT found that the Employment Tribunal had not properly applied the "broad-brush" Article 10/Article 14 (ECHR) assessment to determine whether charity trusteeship/Presidency amounted to an "other status" or whether the claimant was in an analogous position to employees or limb (b) workers; that ground was allowed and remitted to the same Employment Tribunal for reconsideration. The EAT also held that a worker is protected from detriment by a current employer for disclosures made to that employer prior to the commencement of the employment.

Appeal to the Employment Appeal Tribunal from the Employment Tribunal (Employment Judge M Butler) judgment sent 26 April 2023 following a Preliminary Hearing (27-28 February, 1 March and in chambers 2-3 March 2023). The EAT delivered judgment on 21 October 2024 ([2024] EAT 166), upholding the ET on contract issues, allowing the Article 10/14 ground and remitting that point to the same Employment Tribunal; the EAT also allowed the temporal protection point under s.47B ERA.