The EAT has held that three emails which raised health and safety concerns over employees driving in the snow that were sent to two recipients separately, amounted to a protected disclosure under the whistleblowing legislation.  Whilst the emails were not protected disclosures on their own, taken as a whole, they satisfied the relevant test.

Background

The Employment Rights Act 1996 ("ERA") protects an employee from being subjected to any detriment or being dismissed by his/her employer on the grounds that he/she has made a protected disclosure.  For the disclosure to be protected, it must be a qualifying disclosure, which means that it must be a disclosure of information which, in the reasonable belief of the worker making the disclosure, tends to show one or more of certain prescribed circumstances, which include that the health or safety of any individual has been, is being or is likely to be endangered.

Norbrook Laboratories Ltd v Shaw

Mr. Shaw was employed by Norbrook as a Sales and Business Communications Manager.  His role was to manage a team of Territory Managers whose duties included driving to customers and potential customers to obtain sales.  Following large snowfalls in the winter of 2010, the Territory Managers experienced difficulty in getting to their appointments and were concerned about the impact on their pay if they were unable to travel to their appointments due to the weather.  As a result, Mr. Shaw sent an email to Mr. Cuthbertson, Norbrook's Health and Safety Manager, requesting advice on the company’s policy on driving in the snow and asking whether a risk assessment had been carried out by the company.  Mr. Shaw was informed that there was no applicable company policy or risk assessment but was given some suggestions by Mr. Cuthbertson on driving in the snow.  Mr. Shaw emailed Mr. Cuthbertson again on the same day asking for "formal guidance" from the company and stating that the team was under pressure to continue on the road and this was dangerous.  A few days later, Mr. Shaw sent an email to Norbrook's HR department asking for formal guidance (again) from the company and requesting clarity on the impact on pay if the Territory Managers were unable to travel due to the snow.  In this email, Mr. Shaw referred to his duty as the Territory Managers' manager to care for their health and safety. 

Mr. Shaw was subsequently dismissed by Norbrook and brought a claim for automatic unfair dismissal and detriment on the grounds that he had made a protected disclosure.  The Tribunal considered that whilst each separate email did not amount to a qualifying disclosure, the three emails taken as a whole did.  Norbrook appealed. 

Decision

The EAT upheld the Tribunal's decision that the three emails, taken together, were capable of amounting to a protected disclosure.  The EAT referred to previous decisions which establish:

  • that an earlier communication can be read together with a later one as "embedded" in it, rendering a later communication a protected disclosure even if taken on their own, the communications would not have met the test, and
  • that disclosure must be of information, not an allegation, or an expression of opinion, or state of mind.

On the facts of this case, the Tribunal was entitled to consider the email correspondence as a whole notwithstanding that the third email was sent to HR whereas the first two emails were sent to Mr. Cuthbertson.  Looking at the final email, HR could not have been in doubt that there had been earlier communications from Mr. Shaw about the dangerous driving conditions for Territory Managers. 

The EAT also held that the Tribunal was correct in deciding that the emails amounted to a disclosure of information rather than an expression of opinion, as Norbrook had argued.  The emails, together, were drawing attention to the danger posed by the Territory Managers driving in snowy conditions.  It did not matter that Mr. Shaw did not specify particular managers or territories.

Comment

When facing a whistleblowing claim, employers should look carefully at the protected disclosure relied upon to see whether it meets the statutory test.  However, this decision confirms that Tribunals will look at the whole factual context when assessing whether there has been a protected disclosure.  On the facts of this case, whilst the emails had been sent to different individuals, it was clear from the last email that Mr. Shaw had raised concerns about driving in the snow on previous occasions, therefore, taken as a whole, the Tribunal and EAT were satisfied that Mr. Shaw had made a protected disclosure.  The EAT did indicate however that if the position hadn't been so clear and HR could reasonably have been unaware that Mr. Shaw had raised concerns in the past, their decision may have been different.