Different Emails, Read Together, Can be a Qualifying Whistleblowing Disclosure
In the case of Norbrook Laboratories (2B) Limited v Shaw the EAT considered whether emails sent to different recipients could be taken as a whole to amount to a qualifying disclosure for the purposes of a whistleblowing claim.
Mr Shaw was employed by Norbrook Laboratories (2B) Limited. He worked as a sales and business communications manager. Mr Shaw's duties included managing a team of Territory Managers. The Territory Managers drove to customers to try to obtain sales.
In the winter of 2010 the Territory Managers raised concerns with Mr Shaw about their difficulties travelling to their appointments because of large snow falls. On 30 November 2010, Mr Shaw emailed Norbrook's Health & Safety Manager. He was told there was no applicable company policy or risk assessment. Mr Shaw responded, explaining he was hoping for some formal guidance from Norbrook due to the pressure on the team to continue driving in snowy conditions. On December 2010, Mr Shaw sent an email to a member of the HR team requesting clarification about his team's pay if unable to travel due to the snow. He also repeated his earlier request for formal guidance and referred to his duty to care for his team's health and safety.
Mr Shaw was subsequently dismissed. He brought a whistleblowing claim arguing that his dismissal was automatically unfair because he had made a protected disclosure.
The Employment Tribunal considered whether as a preliminary issue the three emails amounted to qualifying disclosure. The Tribunal determined that, taken as a whole, the emails were capable of amounting to a qualifying disclosure.
The decision of the EAT
The EAT upheld the Tribunal's decision. It agreed that the Tribunal was capable of making a finding that the emails could be taken as a whole to amount to a qualifying disclosure. The fact that the emails did not go to the same recipient did not mean that they were not capable of amounting to a qualifying disclosure when taken as a whole. This was on the basis that Mr Shaw's final email referred to the earlier communications.
The EAT's decision makes it easier for employees and workers to bring a claim for whistleblowing. The case confirms that separate correspondence can cumulatively amount to a qualifying disclosure. It also confirms that such correspondence does not need to be sent to the same recipient where the earlier correspondence is referred to in it.