Case update (3): Whistleblowing – qualifying disclosures

unfair dismissalSummary: Can multiple communications to an employer together amount to a ‘qualifying disclosure’ for the purposes of whistle-blowing legislation, even if the individual communications are not themselves sufficient to amount to protected disclosures?

Yes, says the EAT in Norbrook Laboratories (GB) Ltd v Shaw.

Facts: Mr Shaw was employed by Norbrook Laboratories (GB) Ltd (Norbrook) as a manager of a sales team.  His work involved driving to customers to obtain sales. In the winter of 2010 there were particularly large snowfalls and the employee’s team experienced trouble travelling to their appointments and raised these concerns with the employee. The employee in turn emailed Norbrook’s health and safety manager and questioned whether the company had an adverse weather policy concerning driving in the snow (there was not) and whether it had done a risk assessment (it had not).

Mr Shaw emailed the Health & Safety manager again later that day, asking for formal guidance due to the pressure on the team to keep driving in dangerous conditions. Several days after he sent this email and, following queries from his team, Mr Shaw sent an email to a member of HR asking if they would be paid if they were unable to travel due to the snow, repeated his request for formal guidance and referred to his duty of care for his team’s health and safety.

Mr Shaw was subsequently dismissed. He brought a Tribunal claim for automatic unfair dismissal on the ground of making a protected disclosure and suffering a detriment. The Tribunal considered, as a preliminary issue, whether Mr Shaw had made a protected disclosure – i.e. a disclosure of information which he reasonably believed showed that someone’s health and safety was endangered.  Previous cases establish that the disclosure has to be of information – namely facts, not mere allegations or mere expressions of opinion.

The Tribunal decided that, although the individual emails on their own might not be disclosures of information, when taken as a whole they could be classed as a protected disclosure and the claim could therefore go ahead.  In particular, the recipient of the third email would have been aware of the previous two, so they could be regarded as “embedded” in the final one to form a disclosure of information.  Although the claimant sent the third email to a different individual, it was clear in it that he was referring to earlier communications and its recipient could have been in no doubt that these had been about the danger of driving conditions for his team.  Further, whilst Mr Shaw was undoubtedly expressing an opinion, he was also communicating information by telling his employer that the health and safety of his team was (in his opinion) at risk.

The EAT upheld the Tribunal’s decision.  Therefore the claim can now go ahead.

Implications:

This case confirms that separate correspondence can, taken all together, amount to a qualifying disclosure.  It also establishes that correspondence does not need to be to the same person where the earlier communication is clearly embedded in it.

It is a reminder to employers to always be on the look-out for whether any communication from an employee about any alleged legal breach of duty, health & safety concern or environmental concern may be a protected disclosure.