Whistleblowers - Three emails taken together can amount to a 'protected disclosure'

03 March 2014

Ian Hunter, Tim Goodwin

In Norbrook Laboratories (GB) Ltd v Shaw, the claimant alleged that his employer had taken action against him because he was a ‘whistleblower’.

He claimed that he had made a protected disclosure of information to his employer in which he raised concern that the health and safety of his team was at risk.

The claimant had sent 2 emails to his employer’s Health and Safety Manager and then a third email, a week later, to a different employee in the HR department.

While the first email was a simple enquiry as to whether there was a company policy about employees driving in severe weather conditions, the third was a statement that employees were ‘battling through the snow’ in which the claimant referred to his duty to care for their health and safety.

The employer argued that the emails could not be taken together having been sent at different times to different people and in any event, the claimant had merely been making a request for information or commenting on an obvious state of affairs.

However, the EAT considered that, as the final email explicitly referred back to the earlier ones, all 3 could be taken together as amounting to a protected disclosure on a health and safety issue, therefore the claimant therefore qualified as a whistleblower.

Points to note –

  • Employers may be legally liable to compensate whistleblowers if they are subject to a detriment. Further, it is automatically unfair to dismiss an employee for making a protected disclosure.

This article is part of the UK Employment Law Update for March 2014

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