The EAT has upheld an employment tribunal decision which took a broad view of the definition of a protected disclosure. That meant that a worker was not precluded from bringing a whistleblowing claim because he was unable to point to a single document which set out the totality of his concerns.
The dispute arose against the background of the exceptionally cold winter of 2010. The claimant’s job involved supervising a national network of sales managers who had to drive around the country to visit customers. In late November, at the beginning of the first cold snap of the winter, he e-mailed the health and safety manager asking for guidance about driving in the snow and whether a risk assessment had been done. This was followed later the same day by a further e-mail re-iterating his request for formal guidance and pointing out that it was dangerous on the roads. Finally, about a week later he e-mailed a member of the HR department asking for a policy statement. In this latest e-mail he pointed out that he had himself been out on the snowy roads and knew how dangerous it could be. He said that as a manager he was responsible for the health and safety of his staff. This last e-mail also mentioned other concerns including about loss of pay if his staff were unable to travel.
The employer argued that the whistleblowing claim should be struck out because none of these e-mails, taken on their own, amounted to a protected disclosure. The EAT has decided that the employment judge was correct to allow the claim to proceed to a full hearing. It said that the e-mails could be read as a whole, even though they did not all go to the same person. In addition, that fact the information about the dangers of driving in the snow was mixed in with other topics did not matter. Finally arguments that the information disclosed was not specific enough were dismissed.
This case demonstrates that protected disclosures can arrive in many forms, and can even be spread across a number of different documents. Attempts to shut out claims based on a narrow view of the statutory definition are not likely to be successful. When disciplining or dismissing workers, employers need to be particularly alert to the possibility that protected disclosures may have been made.