In a rather surprising decision, the EAT has held in the case of Norbrook Laboratories (GB) Ltd v Shaw that a manager raising concerns about his colleagues driving in the snow could amount to a ‘qualifying disclosure’ about health and safety for the purpose of whistleblowing protection.
In the winter of 2010 the Claimant sent an email to the Respondent’s health and safety manager asking whether the company had a policy about driving in the snow and asking whether they had carried out a risk assessment. The Respondent replied that they did not have a policy and had not carried out a risk assessment. The Claimant then sent a further email asking for formal guidance and stating that his team were under pressure to drive in the snow as part of their role was to drive to customers and potential customers addresses to obtain sales. He said that he felt driving in the snow was dangerous.
A few days later the Claimant emailed a member of the HR team to ask whether he and his team would be paid if they could not attend appointments because of the snow. He also said that he knew the roads were dangerous and that he owed a duty of care to his team.
The Claimant was subsequently dismissed and brought a claim for automatic unfair dismissal. in doing so he sought to rely on his emails as constituting ‘qualifying disclosures’ and asserted that his dismissal amounted to a detriment.
At a pre-hearing review an Employment Judge held that on the basis that the Claimant’s emails informed his employer that the road conditions were so dangerous that the health and safety of his team members was at risk, taken together such emails could amount to a ‘qualifying disclosure’. The Claimant’s claim for automatic unfair dismissal and detriment were therefore allowed to proceed. The Respondent appealed.
The EAT upheld the tribunal’s decision. This was despite the fact that the emails sent by the Claimant were not sent to the same individual or department. She stated that taken separately, each email alone was not a disclosure. However, the EAT said it was clear in the Claimant’s later email that he was referring to earlier emails and the Respondent could have been in no doubt that the later emails were about the dangerous driving conditions for the Claimant’s team. Therefore the later email was ‘embedded’ in the previous emails raising health and safety concerns and should be read together.
The claim was allowed to proceed to a full hearing.
For more information, please contact the Employment team