The case of Norbrook Laboratories (GB) Ltd v Shaw UKEAT/0150/13/RN addressed whether multiple separate disclosures taken as a whole could be classed as a qualifying disclosure. The EAT held in this case that
Mr Shaw commenced employment on 4 October 2010 with Norbrook Laboratories (GB) Ltd, a company which sells and distributes pharmaceutical products. His responsibilities as Sales and Business Communications Manager included managing a team of Territory Managers who operated in the UK. These Territory Managers were often obliged to drive to clients and potential clients in order to gain sales.
The winter of 2010 in the UK was particularly severe and there were large snowfalls, with main motorways closed. This meant that the Territory Managers were finding it difficult to get to their appointments. The Territory Managers therefore raised with Mr Shaw the issue of whether, if they were unable to attend an appointment, they would still be paid their wages.
On 30 November 2010 Mr Shaw emailed Mr Cuthbertson, the Health and Safety Manager at Norwood Laboratories, to request that he be provided “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 Shaw then emailed Mr Cuthbertson later that day to ask for “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…”.
On 6 December 2010 Mr Shaw sent an email to a member of the Human Resources team to state that he had a “duty of care for [his team’s] health and safety. Having spent most of Monday and Friday driving through snow I know how dangerous it can be…”.
Mr Shaw was subsequently dismissed from his employment with the company and he made claims to the Employment Tribunal for automatic unfair dismissal (under s.130A Employment Rights Act 1996) and detriment due to making a protected disclosure (under s.47 Employment Rights Act 1996) – these claims are known colloquially as “whistleblowing” claims.
A Pre-Hearing Review was held on 29 May 2012 at which Norwood Laboratories argued that Mr Shaw’s emails separately or together could not be determined to be a “protected disclosure” for the purposes of s.43B Employment Rights Act 1996. Mr Shaw contended that in fact these emails did amount to a protected disclosure as they alleged health and safety breaches on the company’s part. The Employment Tribunal found that the emails of 30 November 2010 and 6 December 2010 were capable of amounting to qualifying disclosures. Norwood Laboratories appealed the judgment of the Employment Tribunal, arguing that the emails were not capable of amounting to qualifying disclosures, either separately or together, as the emails did not contain “information” but only Mr Shaw’s statement of mind, the emails only contained “generalised disclosure”, and that separate emails could not be read as a whole as qualifying disclosure.
The Employment Appeal Tribunal dismissed Norwood Laboratories’ appeal, holding that the Employment Tribunal had not erred in holding that the email correspondence as a whole amount to a qualifying disclosure, notwithstanding the fact that the email of 6 December 2010 was sent to a different individual in a different department, as Mr Shaw had referred in his email dated 6 December 2010 to the previous correspondence with Mr Cuthbertson. The Employment Appeal Tribunal found that the recipient of the email dated 6 December 2010 could not therefore have been in doubt that there had been earlier correspondence from the Claimant regarding the dangerous conditions that the Territory Managers were driving in.
What does this case mean for me?
If you are an employee and are raising complaints about an issue in different communications then it is advisable to refer in any complaint to previous communications that you had made regarding the issue – this will restrict the scope of the employer to argue that any complaints sent by the employee do not (either separately or as a whole) amount to a qualifying disclosure.
However, and as the Employment Appeal Tribunal made clear in its judgment, the EAT’s decision turned on the facts of this particular case – if the email of 6 December 2010 had made it clear that there had been previous communications regarding the same issue then Mr Shaw’s arguments may have failed.
Why is this case significant?
This case is significant as it was the first case to consider whether separate communications complaining of the same issue (which may not each in and of themselves be qualifying disclosures) could be taken as a whole to be a qualifying disclosure. It will aid employees who address the same complaint on multiple occasions (possibly on different dates to different persons) to bring ‘whistleblowing’ claims.