A recent case highlights the potential ease for employee concerns in multiple emails about health and safety to amount to a protected disclosure under whistleblowing legislation and for employees to gain unfair dismissal rights as a result.
What is a protected disclosure?
Workers and employees who have made a protected disclosure are protected from being subject to a detriment under the whistleblowing provisions set out in the Employment Rights Act 1996; in addition, employees have the right to bring an automatic unfair dismissal claim against the employer if they have been dismissed because they have made a protected disclosure. Importantly there is no qualifying period of employment for bringing such a claim.
A protected disclosure is a disclosure of information, normally to the employer, about a specified type of malpractice and is more than just an allegation or an expression of opinion. In addition, the worker must have a reasonable belief that one or more of the specified types of malpractice has taken place, is taking place or is likely to take place. Danger to the health and safety of any individual is one of the specified types of malpractice that benefits from whistleblowing protection.
Norbrook Laboratories (GB) Ltd ("Norbrook") employed Mr Shaw as a sales and business communications manager responsible for managing a sales team of territory managers. The territory managers' normal duties required them to drive to their customers throughout the UK to secure sales.
In the winter months of 2010, Mr Shaw's team experienced difficulties travelling to client appointments due to heavy snowfall and they raised concerns with Mr Shaw about the dangerous driving conditions. Mr Shaw, in turn, wrote 3 emails to the company:
- On 30 November 2010, he sent an e-mail to Norbrook's Health and Safety manager asking for Norbrook's policy on driving in snowy weather conditions and confirmation of whether any risk assessment had been carried out. In response, the Health and Safety manager confirmed that there was no policy relating to the concerns raised and a risk assessment was not required in the circumstances.
- Mr Shaw responded to this email on the same day stating that he required formal guidance as his team were under pressure to continue driving in dangerous weather conditions and he was aware from his own experience that the driving conditions were treacherous.
- Mr Shaw sent a third email to a member of Norbrook's Human Resources department on 6 December 2010. In this email, Mr Shaw requested clarification about whether his team would be paid in the event that they were unable to travel because of the snow. He also repeated his requests for formal guidance and referred to the duty of care that he owed to his team in relation to their health and safety.
Subsequently, Mr Shaw was dismissed and he relied on these emails as amounting to a protected disclosure affording him whistleblowing protection, when he brought a claim for automatic unfair dismissal and detriment on the grounds of public interest disclosure.
The Employment Tribunal concluded that Mr Shaw was informing his employer that the road conditions were so dangerous that the health and safety of his team was being placed at risk and they were likely to be endangered, and that therefore he had made a disclosure of information which amounted to a protected disclosure.
On appeal, the Employment Appeal Tribunal ("EAT") upheld the original decision. It considered that the Employment Tribunal was right to take Mr Shaw's three emails together, even though the third email was sent to a different individual and department. The EAT took the view that it was clear in the third email that Mr Shaw was referring to earlier communications and it was not reasonable for the recipient to have been unaware of these communications.
Taking the three emails together, Mr Shaw was drawing attention to the danger posed to his team and the emails communicated information sufficient to gain whistleblowing protection. It was not material that the emails did not refer to specific managers, territories or give detailed information about his or his team's concerns.
What does this mean for employers?
Employers must be careful when receiving multiple emails from workers or employees that raise concerns relating to potential malpractice and ensure that such concerns are properly addressed. In particular:
- Check whether your whistleblowing policy is up to date and apply it to ensure that employee concerns are taken seriously;
- Ensure that departments share information to reduce the risk of disclosures of this kind being overlooked; and
- When concerns are raised about adverse weather or the health and safety of employees, carry out risk assessments in line with the company's policy, where appropriate.