SUMMARY: The EAT has upheld a decision that 3 separate emails about snowy conditions could amount to a “qualifying disclosure” about health and safety for the purpose of whistleblowing protection.
Legal Background
An employee who blows the whistle has protection against being dismissed or subjected to a detriment because they have taken this action. Whistleblowing means making a qualifying disclosure and there are various reasons for which a disclosure can amount to a qualifying disclosure. One of these reasons is if the disclosure is about health and safety.
To amount to a qualifying health and safety disclosure and so provide the employee making the disclosure with protection, the disclosure should show that the health or safety of an individual has been, is being or is likely to be endangered.
If an employee simply expresses an opinion or makes an allegation, this cannot amount to a qualifying disclosure.
Facts of this case
In this case, an employee sent 3 separate emails to 2 separate recipients relating to his concerns about his team driving to appointments in the snow in the winter of 2010. He first sent 2 emails to the company’s health and safety manager and subsequently emailed a member of the company’s Human Resources department asking about payment if his team were unable to make appointments in the snow.
The Employment Appeal Tribunal’s (EAT’s) decision
The EAT upheld the employment tribunal’s decision that the email correspondence taken as a whole was a qualifying disclosure. It was clear in the final email to Human Resources that earlier correspondence had been sent about the dangers of driving in the snow.
Although taken on their own, the emails did not amount to qualifying disclosures, taken together they did amount to a qualifying health and safety disclosure.
What does this mean for employers?
Employers should be aware of the following:
- Email correspondence can easily be referred to in a tribunal so emails should not be dismissed or sent lightly;
- Emails which refer to dangerous working conditions, including dangerous driving conditions for sales staff, should be taken seriously;
- Emails which seem short with insufficient detail on their own could be protected by whistleblowing legislation when taken with other emails;
- If an employee refers to previous correspondence to another manager, the person receiving the later email should check exactly what the previous correspondence says and consider the emails together; and
- A person should not be subjected to any detriment (i.e. be dismissed, not offered an opportunity for promotion or a pay rise etc.) because they have raised concerns about health and safety.
We would therefore always advise taking legal advice if an employer is considering dismissing an employee if there is a history of the employee raising health and safety concerns.
Hazel Robbins, Solicitor
Case: Norbrook Laboratories (GB) Ltd v Shaw
Contact Details
For more details about this case or whistleblowing please contact:
fgmedia@fgsolicitors.co.uk
+44 (0) 1604 871143
This update is for general guidance only and does not constitute definitive advice.
