Different communications, taken together, may add up to a protected disclosure, says the EAT
In Norbrook Laboratories v Shaw the EAT decided that a claimant’s warnings of a health and safety risk to his staff after snowfall made driving potentially dangerous - made in three different emails - qualified for protection under whistleblowing legislation.
To gain protection from the whistleblowing provisions of the Employment Rights Act 1996, workers must first establish that they have made a “qualifying disclosure”. There is no qualifying period of employment for making a claim of automatic unfair dismissal under the whistleblowing rules, but the disclosure must contain information, rather than being simply an allegation.
Facts
Shaw managed a team of regional sales managers. During the severe winter of 2010, the managers struggled to drive to their appointments and asked Shaw whether they would still be paid if they could not attend appointments.
Shaw sent three emails to his employer. He emailed the company's health and safety manager asking for advice on what the managers “should do in terms of driving in the snow. Is there a company policy and has a risk assessment been done?" He was informed there was no company policy or risk assessment on this, but given some hints on driving in the snow. He emailed the same manager later that day saying the team was “under a lot of pressure to keep out on the roads at the moment and it is dangerous”, that he had been hoping for some “formal guidance”, and asking whether what he had received was formal guidance.
A few days later he emailed the HR department saying that he was “only after a policy statement to help build morale and goodwill within the team. As their manager I also have a duty to care for their health and safety.” He then said his own experience showed that driving through snow was dangerous and unproductive, and the managers would make more sales by phoning customers. He continued, “If they are not going to be paid then I have to put in contingencies for diverting calls to those team members still on the road. In the absence of any formal guidance I take full responsibility for the directions given to my team."
He was subsequently dismissed. He had insufficient qualifying service to claim unfair dismissal and instead claimed automatically unfairly dismissal for making a protected disclosure under the whistleblowing rules.
Tribunal
The employment tribunal concludedthat Shaw’s emails were informing his employer that road conditions were so dangerous that they were placing the health and safety of his team at risk. That was clearly capable of being a disclosure of information. It was immaterial that Shaw’s team was actually concerned about whether they would be paid.The employer appealed.
EAT
The Employment Appeal Tribunal judge said the tribunal was right to take the three emails together in deciding whether Shaw had made a protected disclosure. Even though the third email was sent to a different individual from those sent earlier, the communications could be considered together because the last email referred to the two previous ones. Taken together, Shaw’s emails were drawing attention to the danger posed to the sales managers. The emails also communicated information, and were not just expressing opinions or making allegations. The employer’s appeal was dismissed and Shaw’s claims sent back to be considered in full by the employment tribunal.
Comment
Employers concerned about “spotting” a qualifying disclosure should take some comfort from the fact that this case could well have been decided differently if the recipient of the third email could reasonably have been unaware of the previous emails. Nevertheless, employers must be vigilant about whistleblowing, particularly as it effectively extends the right to claim unfair dismissal to those without the usual two years’ qualifying service.
Audrey Williams is a partner at Eversheds
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