Three Emails Taken Together as Protected Disclosure in Whistleblowing Case

When considering exactly what constitutes a ‘qualifying protected disclosure,’ it is always advisable to seek specialist advice. The law defines what type of disclosure qualifies the person disclosing the information for protection against dismissal and detriment. This includes a disclosure alleging risk to health and safety such as in the case of Norbrook Laboratories Ltd (GB) V Shaw, which recently reached a decision at EAT to uphold that of the original employment tribunal decision.

This case demonstrated that correspondence of information does not necessarily have to be to the same person and could potentially be made up of separate correspondence (as long as it is clearly related.) It is important, however as always to recognise that when considering such cases the facts relating to each individual case are taken into account.

Case Background
In the case of Norbrook Laboratories Ltd (GB) V Shaw, the claimant Mr Shaw made a claim for automatic unfair dismissal on the grounds of making a protected disclosure and suffering a detriment. Mr Shaw was employed as the manager of a sales team, and he raised concerns via email that he felt that the health and safety of his team was at risk. In particular, he felt that his team were facing hazardous driving conditions in order to attend appointments where there was unusually heavy snow during the winter of 2010.

The first email was simply an enquiry to the health and safety manager, as to whether or not there was a policy relating to employees driving in adverse weather conditions. Mr Shaw also queried whether or not a risk assessment had been taken in relation to this. The claimant then sent a second email, again to the health and safety department. This email requested formal guidance relating to what he felt was pressure on his team to continue driving through dangerous conditions, in order to attend their scheduled meetings. He then contact the HR department a number of days later, repeating his request for formal guidance regarding the above. He also enquired as to whether or not his team would be paid if they found themselves unable to travel due to the heavy snow. It was in this final email that he made reference to his duty of care as a manager towards the health and safety of his team who he described had been ‘battling through the snow.’ For information, it did indeed transpire that there was no formal adverse weather policy and that no risk assessment had been carried out.

Considerations
The employment tribunal had to originally consider whether or not the three separate emails could be considered together as a qualifying protected disclosure. Norbrook Laboratories Ltd (GB) had argued that the original email could not be counted as they had classed it as a simple request for information, and that they could not be taken together because they were sent to different people at different times. The tribunal concluded that whilst the individual emails in isolation may not be disclosures of information, it was clear that the recipient of the third email would have been aware of the original two; and that they could therefore be classed as a whole.

They also considered that whilst Mr Shaw may have been expressing an opinion, he was still communicating information which was that he was telling his employer that the health and safety of his team was at risk.

EAT
The EAT, backed up this decision also concluding that all three emails could be taken together, as the final email explicitly referred back to the first two. They confirmed therefore, that the claimant could indeed qualify as a whistleblower having made a protected disclosure relating to a health and safety issue at work.

Whilst every effort has been made to maintain accuracy throughout this article, Nationwide Employment Lawyers cannot accept responsibility or liability for any errors. This article is intended for guidance purposes  only and does not constitute specialist legal advice. Nationwide Employment Lawyers accept no responsibility or liability whatsoever for any action taken or not taken in relation to this article and recommend that appropriate legal advice be taken in all circumstances.