Mr Shaw feared for his staff. It was snowing, hard. The winter of 2010 was a severe one, motorways were closed, and Mr Shaw had a team of sales staff on the road sliding all over the place. So, he sent an email to his health and safety manager asking for some advice about what his team should do – was there a policy, and had a risk assessment been carried out? No, was the answer. Mr Shaw emailed again. “The team are under a lot of pressure to keep out on the roads at the moment and it is dangerous”, he wrote, and a few days later he sent another email, this time to HR, reiterating again how dangerous driving in snow could be and expressing concern about his duty of care towards his team.
Mr Shaw was dismissed. He lacked the qualifying period for unfair dismissal protection, but claimed automatic unfair dismissal and that he had been subject to a detriment, both on the grounds of being a whistleblower. Did his emails provide him with whistle-blower protection?
Yes, came the answer from the Employment Appeal Tribunal recently. According to The Honourable Mrs Justice Slade, “An earlier communication can be read together with a later one as ‘embedded’ in it rendering the later communication a protected disclosure even if taken on their own they would not fall within that section”.
So Mr Shaw gets to return to the Employment Tribunal for his case to be heard. Let’s hope it’s not snowing.
Mr Shaw was deemed to have made a “disclosure of information which, in the reasonable belief of the worker making the disclosure, tends to show…that the health or safety of any individual has been, is being or is likely to be endangered”. Mr Shaw’s disclosure pre-dated 25 June 2013, since when a worker also has to show that the disclosure of information was “made in the public interest”. The EAT issued its judgement on the preliminary issue mentioned above on 24 January 2014 – see Norbrook Laboratories (GB) Ltd v Mr A Shaw, UKEAT/0150/13/RN.