Employment Law News

Separate emails but read as one can amount to a qualifying disclosure

For an employee to bring a whistleblowing claim, they first need to show that they have made a qualifying disclosure. In simple terms this means that an employee has made an allegation to their employer which shows that malpractice has taken or will take place or an employee’s health and safety is at risk.

In Norbrook Laboratories (GB) Ltd v Shaw, the EAT held that three separate emails, which raised concerns about driving in snowy conditions, when read as a whole did amount to a qualifying disclosure.

Mr Shaw was employed as a manager for Norbrook Laboratories. His duties included managing a team of staff who drove around the UK to win sales. During the winter of 2010, heavy snowfall affected his team’s ability to travel to appointments. As manager, Mr Shaw sent two emails to the company’s health and safety manager. The first one asked whether there was a policy for driving in snowy conditions and whether a risk assessment had been carried out. The second asked for guidance, as the driving conditions were dangerous and pressure was being placed on the team to continue performing duties. The third email was sent to HR, but referenced the two previous emails, asking whether his team would still be paid if they didn’t drive and he repeated his previous requests for guidance.

The Tribunal held that on their own, the emails did not amount to a qualifying disclosure but when read as a whole, it was enough to show that an individual’s health and safety was endangered. Although it has already been established that separate correspondence can amount to a protective disclosure, this case confirms that each correspondence does not have to be to the same person, so long as reference is made to previous communications.