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A winter’s tale – e-mail correspondence and whistleblowing

The severe winter of 2010 caused significant disruption across the UK, both to homes and businesses. It has also given rise to Norbrook Laboratories (GB) Limited v Shaw, a recent Employment Appeal Tribunal decision on whistleblowing.

Mr Shaw worked for Norbrook as a sales and business communications manager. As part of his role, he managed a team of “territory managers” who drove around the UK to make sales.

In 2010, the territory managers had trouble reaching their appointments due to snow on the roads. As a result, Mr Shaw sent several e-mails to colleagues:

  • on 30 November 2010, he asked Norbrook’s health and safety manager what the territory managers should do about the snow and whether the company had a relevant policy or risk assessment;
  • later that day, he told the health and safety manager that he was hoping for some formal guidance as he felt that the roads were dangerous; and
  • on 6 December, he advised Norbrook’s HR department that he wanted a policy statement on the dangerous driving conditions.

Mr Shaw eventually raised Employment Tribunal claims of automatic unfair dismissal and of being subjected to a detriment, both on grounds of making a protected disclosure. A preliminary issue during the tribunal proceedings was whether the e-mails, taken together, could amount to a qualifying disclosure under s43B of the Employment Rights Act 1996.

The employment tribunal decided that the e-mails could amount to a qualifying disclosure, and this was upheld by the Employment Appeal Tribunal on appeal. The EAT agreed that Mr Shaw’s e-mails were not solely an expression of opinion or an allegation: he had also drawn attention to the dangers caused by the inclement driving conditions.

The EAT also decided that it had been appropriate for the tribunal to consider Mr Shaw’s e-mail correspondence as a whole, even though the 6 December e-mail was sent to a different person in a different department. In this e-mail, Mr Shaw made clear that he was referring to earlier communications about the dangerous driving conditions.

This case illustrates that different communications from an employee – even if they are made to different individuals in different departments – can be read together as a qualifying disclosure for the purposes of whistleblowing. Employers should try to ensure that departments share information effectively to reduce the risk of disclosures of this kind being overlooked.

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