Emails to different recipients amounted to a protected disclosure when considered together

In the case of Norbrook Laboratories (GB) Ltd v Shaw UKEAT/0150/13, the Employment Appeal Tribunal (EAT) considered whether a series of emails addressed to different recipients amounted to a “protected disclosure”.

The Claimant, Mr Shaw, was employed by the Respondent company (Norbrook). Mr Shaw had responsibility for a team of “Territory Managers” throughout the UK whose role it was to drive to customers in their territory obtain sales.

The case concerned three key communications:

1)     On 30 November 2010, Mr Shaw emailed Norbrook’s Health and Safety Manager regarding his Territory Managers driving in snowy conditions and requested whether a risk assessment had been carried out. He was informed that there were no formal procedures in place or risk assessments to date;

2)     Later that day, Mr Shaw responded to explain that he was hoping for some formal guidance, given the dangerous driving conditions;

3)     On 6 December 2010, Mr Shaw sent a further email to a different member of staff, requesting clarification on whether the Territory Managers would be paid if they did not drive? He again stressed the dangerous driving conditions and again asked for formal guidance. It was clear from this email that previous requests had been made on this matter.

The question for the EAT was whether these communications amounted to a protected disclosure, specifically that a person had failed to comply with a legal obligation to which he was subject (43B(1)(b) ERA 1996) or that the health or safety of an individual  was being, or was likely to be, damaged (43B(1)(d) ERA 1996.

The EAT held that the communications did amount to a protected disclosure and provided these key points for employers to note:

1)     The EAT reminded the parties that, to be protected, a disclosure must be of information not opinion or a state of mind. It was clear that Mr Shaw’s emails did contain information that showed that the health and safety of the Territory Managers was in danger due to driving in snowy conditions;

2)     Taken alone, these communications did not amount to a protected disclosure. However, the EAT confirmed that an earlier communication can be read together with a later one as “embedded” in it, rendering the later communication a protected disclosure. There were different recipients involved, yet this still amounted to a protected disclosure. The EAT suggested that it may have reached a different conclusion if the recipient of the later communications had been unaware of the earlier communications.

Comment

It is important to note that numerous communications to different recipients within a business can be taken together and amount to a protected disclosure. Care should be taken to ensure that the matter is properly dealt with and that effective communication is maintained between the parties. 

Once an employee has made a protected disclosure they are protected from suffering a detriment/being dismissed as a result of having made that disclosure. It is important therefore that staff are aware of this layer of protection - or the company may face a costly claim.