Channel 4 News reported that Maxwell McLean was removed from his role as chair in October 2023 after raising concerns about alleged failings of senior-level management.
The hospital trust had reportedly argued that McLean was not an employee of the hospital and did not have whistleblowing protections.
However, the outcome of a preliminary hearing on Tuesday (18 March) was that McLean should have been considered a ‘worker’ under employment law, and should have had protection. The case is due to proceed to a full hearing in Leeds.
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This preliminary ruling has significant implications for people who are not usually deemed employees under whistleblowing legislation, according to Alana Penkethman, senior associate at law firm Trethowans.
She told HR magazine: “Historically, you didn’t necessarily need to be an employee, but you did need to work for the employer. This meant that those who are self-employed, or volunteer without a contract, or act as a non-executive director, would not usually be protected.”
The preliminary ruling could have an impact on HR leaders' work in future, Penkethman suggested.
She said: “HR leaders need to keep this wider interpretation of protection in mind. HR needs to handle any disclosure of information respectfully, and ensure that informers [or whistleblowers] are not treated less favourably after raising concerns.”
Andrew Pepper-Parsons, director of policy for the whistleblowing charity Protect echoed this.
He told HR magazine: “This judgment should serve as a wake-up call to employers, to ensure all members of staff can and will speak up. Training is essential for everyone within an organisation, especially those in leadership positions, who need to understand how to listen and react to whistleblowing concerns.
“All boards should appoint a whistleblowing champion to be responsible for the whistleblowing system and culture that exists in the organisation. However, in this case, it's not clear whether this ruling will represent a change in the law as the judgment is not binding, and could be appealed. At this stage it’s a case of watch, wait and see."
Read more: Employees not whistleblowing for fear of retaliation
McLean served for West Yorkshire Police for more than 30 years before spending seven years with the Bradford NHS Clinical Commissioning Group.
In May 2019, he joined Bradford Teaching Hospitals NHS Trust as an appointed chair.
Wim Vandekerckhove, professor of Business Ethics for EDHEC Business School in Paris, emphasised that chairs of boards and board members, should feel safe to speak up about any concerns they may have.
Speaking to HR magazine, he said: “Boards are meant to provide oversight and hold the day-to-day management of an organisation to account. This is an important ruling because it tells us that trying to leverage the letter of the law in order to dodge your responsibilities, can backfire.
“If a board chair isn't safe to speak out, how can we expect any nurse or doctor to be safe to speak up?”
Vandekerckhove also added that HR plays an important role when senior management are silent over whistleblowing claims.
He said: “HR is well-placed to warn of the implications of a silencing chill at the top, and HR will need to stand firm in doing that. For that, it will need backing from the wider HR profession.”
