Dangerous snow...how seriously should you take Employee concerns?

It is an interesting situation that arises nearly every year without fail. Snow on the ground makes it dangerous for employees to travel to work, and employers are left deciding how to treat their lack of attendance, and whether employees should be paid in such situations.

A potentially more concerning issue however, namely Whistleblowing, recently arose in the case of Norbrook Laboratories v Shaw.

Mr Shaw managed a team of sales representatives who, as part of their role drove to see customers. Following heavy snow in 2010, Mr Shaw sent three emails seeking clarification from his employer on any policies that covered driving in the snow, asked whether risk assessments had been carried out, and asked what should happen to sales representatives’ pay if they were unable to fulfil their driving obligations.

He was subsequently dismissed. He claimed automatic unfair dismissal and detriment as a result, on the grounds that he had made a protected disclosure by raising health and safety concerns regarding his team to the employer.

It was found that although each of the three emails by themselves could not amount to a protected disclosure, they could, when taken together, largely because the later emails followed on from the earlier ones and had the earlier correspondence ‘embedded’ within them.

The Tribunal determined that the emails when taken together went beyond mere expressions of opinion from Mr Shaw, and were specific enough to attract protection under the Whistleblowing legislation.

It did not matter that the emails were sent to different recipients, as the concerns raised could not be in doubt. Had the latter recipients not been aware of the earlier correspondence however, it seems unlikely that the emails when taken together would have amounted to a qualifying protected disclosure.

The case is a stark reminder to employers that beyond the simple issues of pay and attendance, there could be wider consequences of not appropriately dealing with safety concerns as a result of heavy snowfall or other adverse weather conditions. Considering the principles from this case is therefore advisable the next time you see snow falling out of the office windows.