• Concerns about driving in the snow can amount to a whistleblowing ‘qualifying disclosure’

    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.

    S managed a sales team whose work included driving to customers and potential customers to obtain sales. The winter of 2010 was particularly severe and members of S’s team raised concerns with him about driving to appointments in the snow. S e-mailed NL Ltd’s health and safety manager asking whether the company had a policy concerning driving in the snow and whether it had done a risk assessment. When S received replies in the negative to both questions he sent a follow-up e-mail to the same manager asking for formal guidance, stating that his team was under a lot of pressure to keep on the roads and that it was dangerous. Several days later, following queries from his team, S e-mailed a member of NL Ltd’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, S said that he had driven on the roads himself, knew how dangerous they could be, and that he had a duty of care towards his team.

    S sought to rely on these e-mails as a ‘qualifying disclosure’ for the purpose of claims that he subsequently brought under Ss.47B and 103A of the Employment Rights Act 1996 alleging that he had been subjected to a detriment and ‘automatically’ unfairly dismissed on the ground 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 a person has failed, is failing or is likely to fail to comply with any legal obligation to which he or she is subject (S.43B(1)(b)) and that the health or safety of an individual has been, is being or is likely to be endangered (S.43B(1)(d)).

    At a pre-hearing review, an employment judge concluded that S’s communications taken as a whole were capable of amounting to a qualifying disclosure within S.43B(1)(d) ERA. Although S was to some extent expressing an opinion, the judge concluded that S 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. Consequently, his claims of detriment and automatic unfair dismissal could proceed. NL Ltd appealed.

    Mrs Justice Slade DBE, sitting alone, upheld the employment judge’s decision that the three e-mails taken together could amount to a qualifying disclosure within the meaning of S.43B(1) ERA even though they were not sent to the same individual or department, and taken separately each e-mail was not such a disclosure. 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 S’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.

    Furthermore, in drawing attention to the danger posed to his sales team of driving in snowy conditions, S was not just expressing an opinion or making an allegation, which case law has established do not amount to qualifying disclosures. It was unnecessary for S to provide additional information as to which territories or members of his team were affected. In fact, in Slade J’s view, it was unsurprising that S had given no more specific information since the weather conditions would no doubt change from time to time and from area to area.

    Since the qualifying disclosure that S relied upon fell within S.43B(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.43B(1)(b). S’s claims could proceed to a full hearing.

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