In Norbrook Laboratories (GB) Ltd v Shaw the EAT has held that a manager’s concerns about employees driving in snowy conditions could amount to a ‘qualifying disclosure’ about health and safety for the purpose of whistleblowing protection, despite being expressed in three separate e-mails to two different recipients.
The EAT upheld the tribunal decision that three e-mails raising concerns about the dangers of driving in snowy conditions amounted to a qualifying disclosure for the purposes of the whistleblowing provisions of the Employment Rights Act 1996. Although, each e-mail was not a qualifying disclosure on its own, the three e-mails taken together amounted to such a disclosure. It did not matter that the last e-mail did not have the same recipient as the earlier two because the earlier communications were “embedded” in the later communication. The e-mails communicated information about danger to the health and safety of individuals within section 43B (1) (d) of ERA 1996 and were not simply an expression of an opinion.
Mr Shaw was employed by Norbrook Laboratories (GB) as Sales and Business Communications Manager. His duties included managing a team of Territory Managers who drove to customers to obtain sales.
Due to large snow fall in the winter of 2010, Territory Managers were experiencing difficulties travelling to their appointments and raised concerns with Mr Shaw. Mr Shaw e-mailed Norbrook’s Health and Safety Manager asking whether the company had a policy concerning driving in the snow and whether it had a risk assessment. He was informed that there was no applicable company policy or risk assessment.
Mr Shaw responded later that day explaining that he was hoping for formal guidance from Norbrook due to the pressure on the team to continue driving in dangerous conditions. Several days later, following queries from his team, Mr Shaw e-mailed a member of Norbrook’s HR department asking whether they would be paid if they were unable to attend appointments because of the snow. In the same e-mail, he also repeated his request for formal guidance and referred to his duty to care for his team’s health and safety.
Mr Shaw was subsequently dismissed by Norbrook and brought claims for automatic unfair dismissal and detriment, both on the grounds of making a protected disclosure. To qualify for these purposes, a disclosure of information is ‘protected’ if it tends to show any of the matters set out in s.43B (1), which include that person has failed, is failing, or is likely to fail to comply with any legal obligation to which he or she is subject (S.43 (B) (1) (B) and that the health or safety of an individual has been, is being or is likely to be endangered. (S.43 (B) (1) (d)).
The employment tribunal considered, as a preliminary issue, whether the three e-mails amounted to qualifying disclosures within the meaning of section 43 B (10 (d) of ERA 1996. The tribunal held that the e-mails, taken as a whole, were capable of amounting to a qualifying disclosure, even though they were not individually. Although Mr Shaw was to some extent expressing an opinion, the judge concluded that Mr Shaw was also informing his employer that the road conditions were so dangerous that the health and safety of his team was being placed at risk. Therefore, his claims of detriment and automatic unfair dismissal could proceed. Norbrook appealed against his decision.
Goode v Marks and Spencer plc EAT 0442/09 was authority that an earlier communication can be read together with a later one as ‘embedded’ in it rendering the later communication a protected disclosure even if, taken on its own, the later communication would not fall within S. 43B (1). It was clear in Mr Shaw’s last e-mail 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 to his team.
Therefore, the employment tribunal had not erred in considering the e-mail correspondence as a whole.
The EAT held that Mr Shaw was drawing attention in the e-mails to the danger posed to Territory Managers of driving in snowy conditions. As such, he was communicating information and not merely expressing his opinion or making an allegation. The fact that Mr Shaw did not specify the particular territory or managers did not affect this.
Since the qualifying disclosure that Mr Shaw relied upon fell within S. 43 B (1) (d), there was no need to consider whether it also amounted to a breach of a legal obligation so as to fall within S. 43 B (1) (b). Mr Shaw’s claims could therefore proceed to a full hearing.
Geoff Bignell, Solicitor and Chairman, Just Employment Ltd.