UK: EAT confirms whistleblowing protection applies to disclosures made pre-employment

The EAT in MacLennan v The British Psychological Society has ruled that protection against detriment for whistleblowing covers disclosures made prior to the employment commencing.  The statutory drafting referring to disclosures to the individual's "employer" should not be taken literally; it can and should be interpreted purposively to protect a worker subjected to detriment by his employer (having started work) for making a protected disclosure prior to starting work. In contrast, unsuccessful job applicants will not be protected (save for those in the NHS).

The EAT also remitted to the tribunal the issue of whether a charity trustee who was not a 'worker' could nevertheless bring a whistleblowing claim, on the basis that depriving them of their ECHR Article 10 right to freedom of expression would discriminate against them on grounds of their occupational status (contrary to Article 14).  A previous Supreme Court ruling relied on these rights to extend whistleblowing protection to judicial office-holders who were in an analogous situation to workers.  The tribunal here had focussed largely on the lack of remuneration and volunteer status in determining that the trustee was not in an analogous situation, and had erred in failing to consider other factors such as the type of role and level of responsibility, the likelihood of becoming aware of wrongdoing, the potential public interest, the individual's vulnerability to retaliation including reputational damage, and the existence of alternative routes for disclosure.  The EAT considered that there was a strong argument that being a charity trustee was akin to occupational status and should therefore be protected.  Similar arguments may be run to try and extend protection to other types of volunteers or office-holders.

The lack of express protection for a wider group of individuals without worker contracts is one of the issues on which campaigners are calling for reform, along with the creation of an independent office of the whistleblower and stronger penalties.  The Parliamentary Under-Secretary of State for Business and Trade, Justin Madders MP, recently confirmed that the government has not ruled this out, agreeing that the as-yet-unpublished results of the Conservative government's 2023 review of whistleblowing law could provide a starting point for further work.  However, campaigners may have to be patient – Mr Madders seemed to be uncertain as to whether the government would find time to "get around to" a review of whistleblowing legislation.