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A judgment in a recent Employment Tribunal case concerning protected disclosures has implications for all employers.
In the case of Norbrook Laboratories (GB) Ltd v Shaw, Mr Shaw, a sales manager sent two emails to his employer’s Health and Safety Manager Mr Cuthbertson and another one to their HR department, pointing out that the snowy weather (remember January 2010?) was creating hazardous driving conditions for the sales staff he managed. In the first email to Mr Cuthbertson, Mr Shaw said:
“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.”
Mr Cuthbertson advised that there was no applicable company policy or risk assessment. Mr Shaw therefore sent him a second email later on the same day in the following terms:
“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?”
The judgment does not record whether or not Mr Cuthbertson responded, but a week later, in response to the fact that his sales staff were asking what would happen to their pay if they were snowed in, Mr Shaw then emailed the company’s HR department, raising the pay issue, but including the following paragraph:
“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 of care for their health and safety. Having spent most of Monday and Friday driving through the 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.”
When Mr Shaw was later dismissed (with less than one year’s service) he argued that he had been dismissed for making a “qualifying disclosure”, i.e. a protected disclosure which is commonly known as “Whistleblowing”. Being dismissed for making a protected disclosure is one of the exceptions which allow an employee to bring a claim of unfair dismissal with less than two years’ service.
In order to count as a protected disclosure, the worker concerned must make a disclosure of information. Making an allegation that the employer has done something wrong, or expressing an opinion to that effect is not enough. The worker making the disclosure must reasonably believe that the disclosure of information tends to show that the employer is failing or is likely to fail to comply with a legal obligation which to which he is subject, or (as was the case with Mr Shaw) that the health or safety of any individual has been, is being or is likely to be damaged. It is irrelevant whether or not the disclosure is true. The employee making the disclosure must however reasonably believe that it is true when he discloses the information.
I would urge all employers to take note of the three emails above, I'm sure I won't be the only one who is amazed that what Mr Shaw said sufficed to count as a protected disclosure. The important issue here is that even though the three emails above, when taken individually, might not amount to a qualifying disclosure, when taken together, they did do so, even though they were not all made to the same person.
The implications for employers are clear. It is important to listen carefully to a worker who believes the employer has done, is doing, or is likely to do something which is either unlawful or potentially dangerous to workers’ health and safety. It is important to ensure that you take appropriate legal advice when such issues occur, as very few employers would have got this one right!
You can also view a version of this article that I contributed to the Law Plain and Simple website.