Protected Disclosures

18 February 2014

In upholding the judgment of the Employment Tribunal, the Employment Appeal Tribunal in the case of Norbrook Laboratories (UK) Limited v Shaw concluded that three emails from the Claimant to the Respondent taken together can amount to a qualifying disclosure within the meaning of Employment Rights Act 1996 section 43B(1) even though they were not sent to the same individual or department and taken separately each email was not such a disclosure.

In this case Mr Shaw made various representations about the dangers of driving in the snow during the severe winter of 2010.

At 10:41 on 30 November 2010 he emailed Alan Cuthbertson, the Respondent's Health and Safety Manager, as follows: "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."

The Claimant emailed Mr Cuthbertson again on 30 November 2010 at 12:04 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?

Finally on 6 December 2010 at 15:44 the Claimant sent an email to a different employee, a member of the Human Resources department, "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 to care for their health and safety. Having spent most of Monday and Friday driving through snow I know how dangerous it can be….."

Linking the emails together HHJ Slade concluded that the recipient of the 6 December email cannot have been in doubt that there had been earlier communications from the Claimant about the danger of driving conditions to Territory Managers.

Some small comfort for employers comes from HHJ Slade's comments that if the last recipient could reasonably have been unaware that the earlier communications had been made there may have been some force in the Respondent’s argument that the emails were too vague and general to constitute a protected disclosure.

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