In Norbrook Laboratories (UK) Ltd v Shaw Mrs Justice Slade DBE sitting in the Employment Appeal Tribunal was asked to consider whether a series of emails, taken together, could be treated as a protected disclosure for the purposes of section 43B(1) of the Employment Rights Act 1996 (whistleblowing protection).
Mr Shaw claimed automatic unfair dismissal and being subjected to a detriment, both on the grounds of having made a protected disclosure (he had insufficient qualifying service to claim “ordinary” unfair dismissal). His disclosure was communicated by two emails sent on 30 November 2010 and one on 6 December 2010. Taken in isolation each email did not constitute a protected disclosure.
Mr Shaw commenced employment with Norbrook as part of an on-the-road pharmaceutical sales team. His duties included visiting clients and prospective clients with a view to securing sales. As readers may recall the winter of 2010 was particularly severe with large snowfalls and motorways closed.
On 30 November he sent an email to Norbrook’s health and safety manager, Mr Cuthbertson:
Could you please provide me with some advice on what my Territory Managers should do in terms of driving in the snow. Is there a company policy and has a risk assessment been done.
Taken in isolation this was an enquiry and not a protected disclosure. He was told that there was no applicable policy or risk assessment but he was given advice about driving in the snow. About two hours later he sent a further email to Mr Cuthbertson:
I was hoping for some formal guidance from the company. The team are under a lot of pressure to keep out on the roads at the moment and it is dangerous. Do I log this as the formal guidance?
Following enquiries from territory managers about whether they would be paid if they were snowed in Mr Shaw sent a further email on 6 December, this time to a member of staff in the human resources department. This email included the following:
I am only after a simply [sic] policy statement to increase transparency and help build morale and goodwill within the team. As their manager I also have a duty to care for their health and safety. Having spent most of Monday and Friday driving through snow I know how dangerous it can be. In addition the time spent battling through the snow is unproductive; they can gain more sales by phoning customers. 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.
The Employment Tribunal concluded that, taking the communications as a whole, they were capable of amounting to a qualifying disclosure with reference to section 43B(1)(d). On appeal it was submitted for Norbrook that this conclusion was perverse or erroneous, that he was merely expressing an opinion and that the disclosure (if that is what it was) could not be spread over a number of documents. Mr Shaw submitted that he made two qualifying disclosures: failure to comply with health and safety requirements and breaches of the Health and Safety at Work Act 1974.
Mr Shaw was successful on appeal. There was no error by the Employment Tribunal in concluding that the in the emails taken together he was communicating information. He was drawing attention to the danger posed to territory managers of driving in snowy conditions. In doing so he did not need to specify particular territories or particular territory managers:
It is unsurprising that no more specific information was given. The information was that the Territory Managers were being exposed to danger by driving in snowy conditions. Those conditions would no doubt change from time to time and from area to area.
Similarly there was no error in considering the email correspondence as a whole, even though the email dated 6 December was sent to a different person. It was obvious from that email that there had been earlier communications, albeit sent to a different person. As a result (since this was an appeal from a decision at a preliminary hearing) the matter was returned to the Employment Tribunal to proceed with the claims.