Whistleblowing disputes: Key lessons for employers & boards

Our expert employment law team looks into a recent case that highlights key whistleblowing lessons for employers and those at board level.

McLean v Bradford Teaching Hospitals NHS Foundation Trust is a useful reminder that whistleblowing disputes often turn as much on governance, documentation and culture as they do on legal labels.

The litigation attracted attention because Dr Maxwell McLean – the former chair of Bradford Teaching Hospitals NHS Foundation Trust – argued that he had suffered detriments after raising concerns about patient safety, neonatal serious incident investigations and wider leadership issues.

Although the Employment Tribunal ultimately dismissed his whistleblowing detriment complaints in 2026, the case remains important because an earlier preliminary decision found that, despite being an office holder and not an employee, he was a “worker” for the purposes of bringing a whistleblowing claim.

Key lessons for employers & boards

1. Do not rely too heavily on job title or governance status

The worker-status decision shows that labels such as “chair,” “office holder” or “non-executive” are not necessarily decisive. Organisations should assess the real substance of the relationship, including personal service obligations, contractual terms, remuneration, governance documents and the degree of integration into the organisation. Where senior appointees are expected personally to perform duties and are embedded in the organisation’s governance structure, whistleblowing protection may apply.

2. Treat board level concerns as potential protected disclosures

Concerns raised at board level may be framed as oversight, challenge or escalation, but they can still amount to whistleblowing if the statutory requirements are met. Employers should avoid dismissing such concerns as merely “governance disagreements.” A safer approach is to record the concern, identify whether it may involve legal obligations, patient safety, health and safety, regulatory compliance or concealment, and ensure that it is handled through an appropriate route. Seek legal advice to err on the side of caution.

3. Document the organisation’s response carefully

The case illustrates the importance of contemporaneous records. Where serious safety or compliance concerns are raised, employers should document what was raised, who received it, what assessment was undertaken, what action followed and why. This is particularly important in regulated sectors such as healthcare, where the organisation may later need to demonstrate both the seriousness with which it treated the concern and the independence of any subsequent decisions affecting the person who raised it.

4. Separate the concern from the relationship issue

Whistleblowing disputes frequently become entangled with breakdowns in trust, governance tensions or interpersonal conflict. Employers should take active steps to separate the handling of the concern from any performance, conduct or relationship issue. Decision-makers should be able to evidence that any action taken against the individual was for a lawful and independent reason, not because they raised protected concerns.

5. Train senior leaders on whistleblowing risk

Whistleblowing training should not be limited to HR teams or line managers. Board members, governors, non-executive directors, chairs and chief executives need to understand how protected disclosures arise, how to respond to them and how retaliation risk can emerge. Training should cover both the legal test and the practical behaviours that create confidence in speaking-up arrangements.

If you have any questions or require legal assistance, please get in touch with our team of employment law experts – we will be happy to help.

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