With the weather set to take a turn for the worse across the
UK, employers need to be aware of all ‘frosty’ communication received from
their employees.
In Norbrook
Laboratories (UK) Ltd v Shaw, the EAT considered whether three emails sent
to two different people could amount to a protected disclosure under
whistleblowing legislation.
The Claimant, who managed a sales team, had sent three
separate emails to two different managers about health and safety concerns over employees driving in snowy conditions.
The Claimant was subsequently dismissed and then argued that his dismissal
should be considered automatically unfair as a result of making a protected
disclosure.
The EAT noted
that the last email sent by the Claimant did not have the same recipient as the
first two emails, but this did not matter as the earlier communications were
‘embedded’ in the later communication. The EAT also noted that the emails
communicated information as opposed to merely making allegations or expressing
an opinion.
The EAT held that
separate communications could still amount to a protected disclosure, even if
they were sent to different people and they did not amount to protected
disclosures on their own. The whole of the correspondence between an employee and
employer will be considered when deciding whether there has been a protected
disclosure. In addition, such correspondence need not be sent to the same
recipient where earlier correspondence is clearly ‘embedded’ in it.
Chris Bains