In a week when adverse weather is again in the headlines we report on the case of Norbrook Laboratories (GB) Ltd v Shaw UKEAT/0150/13, which centred on emails sent by an employee setting out his health and safety concerns about employees driving in heavy snow.  The EAT had to consider whether three emails sent to two different people could amount to a qualifying disclosure that would provide the sender with whistle-blowing protection under the Employment Rights Act 1996.  In this case it was accepted that each email was not a qualifying disclosure in its own right.

Background

The employee alleged he had been dismissed because he had made a protected disclosure. Under the Employment Rights Act 1996, if the principal reason for an employee's dismissal is the fact that he has made a protected disclosure, that dismissal will be automatically unfair and there is no requirement for the employee to have two years' service.  For a disclosure to be protected it must be a "qualifying disclosure". This means any disclosure of information which, in the reasonable belief of the worker making it, shows that malpractice has taken place, is taking place or is likely to take place.

Facts

Norbrook Laboratories (GB) Ltd (the Company) sold and distributed pharmaceuticals, primarily veterinary products.  On 4 October 2010, Mr Shaw commenced employment with the Company as its sales and business communications manager.  He was responsible for a number of territory managers, who travelled the country within their “territory” making sales to customers.

In the winter of 2010 there was particularly severe weather, resulting in some motorway closures and many roads being covered with snow following large snowfalls.  The territory managers had difficulty getting to their appointments and they raised the matter with Mr Shaw. They were concerned that, if they were unable to get to their appointments, they would not be paid and they sought reassurance that they would receive their wages.

Mr Shaw sent three relevant emails to the Company: two to a senior manager and a third to HR, all in connection with the driving conditions.  The first email was an enquiry about whether the Company had conducted a risk assessment in respect of driving in snowy conditions.  The second email sought guidance from the Company about how Mr Shaw should deal with the enquiries he was receiving from the territory managers.  The third email was sent to HR and concerned the territory managers' pay in the event they were snowed in.  Mr Shaw was subsequently dismissed but did not have sufficient qualifying service to claim unfair dismissal.  He brought a whistle-blowing claim.

Employment tribunal decision

The tribunal considered whether Mr Shaw had made a disclosure of information, which he reasonably believed showed that the health and safety of any individual had been, was being, or was likely to be endangered.  To be a qualifying protected disclosure, there had to be a disclosure of information rather than an allegation.

The tribunal held that Mr Shaw may have been to some extent expressing an opinion but concluded that in the course of the e-mails he was also informing the Company that the road conditions were so dangerous that the health and safety of the managers was being put at risk.  It concluded that, even though such facts might have been obvious to the employer, it did not prevent Mr Shaw providing that information and making a disclosure that was capable of amounting to a qualifying disclosure.

The tribunal found that Mr Shaw was disclosing information, namely the danger to his team in driving in those conditions.  The fact that he was making that disclosure against the background of his team being concerned to know that they would be paid if they were snowed in and unable to travel to appointments,  did not mean that the communications themselves were not a disclosure of information.??

The tribunal also concluded that the communications taken as a whole were capable of amounting to a qualifying disclosure and so Mr Shaw's claim of unfair dismissal and detriment on the grounds of public interest disclosure could therefore proceed to a hearing.  The Company appealed.

Employment Appeal Tribunal decision

The EAT considered that an earlier communication could be read together with a later one, as long as the earlier communication was "embedded" in it rendering the later communication a protected disclosure.  This was the case even if, taken on their own, the communications would not fall within the definition of a protected disclosure.  Accordingly, two or more communications could be taken together to amount to a protected disclosure.  However, whether they did amount to a protected disclosure or not was a question of fact.

The EAT considered that it was clear from Mr Shaw's claim that he was relying on two of his emails as supporting his claim and it held that a prior communication could be taken into account, as when it was "embedded" in the later one it amounted to a disclosure.  On the facts of this case, the EAT found that the tribunal had not made an error in considering the three communications together when deciding whether Mr Shaw had made a disclosure that amounted to a protected disclosure. ?He was drawing attention to the danger posed by driving in snowy conditions and the emails were not just an expression of an opinion or making an allegation.

Further, the EAT considered that the information about the danger of the driving conditions set out in the emails did not cease to be such simply because Mr Shaw did not specify the particular managers or the territories affected by the snowy conditions.

Comment

This case has made it clear that separate correspondence can, in some circumstances, accumulate to form a protected disclosure and that such correspondence need not be to the same recipient where the earlier communication is clearly embedded in it.  For employers this is another example of why it is so important to nip any issues in the bud.  If an employee raises an issue it is very unlikely that it will be clearly marked as a "protected disclosure" or a "grievance" but this does not obviate the need for the employer to seek to resolve the issue.  In addition, if an employer receives a communication from an employee where it is evident that previous communications have taken place, the employer should seek to consider all of the information together to ensure that it gets the full picture.