Norbrook Laboratories (GB) Ltd v Shaw

A qualifying disclosure under Employment Rights Act 1996, section 43B(1)(d), must communicate information tending to show that an individual’s health or safety has been, is being, or is likely to be endangered. It need not identify a particular individual, territory or occasion if the information conveyed is sufficiently clear. Separate communications may be read together, including where an earlier communication is embedded in a later one and the communications were sent to different recipients. Whether the communications amount to a qualifying disclosure is a question of fact. Information about dangerous conditions is not reduced to a mere opinion merely because it also expresses concern or seeks guidance.

Mr Shaw, a former Sales and Business Communications Manager, brought claims for automatic unfair dismissal and detriment on the ground that he had made protected disclosures. At a preliminary hearing, the Employment Judge held that three emails concerning Territory Managers driving in severe snow were capable, taken together, of amounting to qualifying disclosures under section 43B(1)(d) of the Employment Rights Act 1996.

Norbrook appealed, contending that the emails contained only opinions or expressions of concern, were too general, were sent to different recipients, and had not all been pleaded as protected disclosures. The central issue was whether the communications were capable of constituting qualifying disclosures.

The appeal was dismissed.

1. The statutory requirement is disclosure of information, rather than an allegation, opinion or statement of state of mind. The information must be facts which, in the worker’s reasonable belief, tend to show that the health or safety of an individual has been, is being, or is likely to be endangered. The principles in Cavendish Munro and Goode were applied.
2. An earlier communication may be read together with a later communication as embedded in it. Accordingly, two or more communications may collectively amount to a protected disclosure even though each, taken separately, would not do so. Whether that is the proper conclusion is a question of fact. Goode v Marks and Spencer plc was applied.
3. The Employment Judge was entitled to treat the three emails as a whole. The later email referred to the earlier communications, and its recipient could not reasonably have been unaware of them. The fact that the emails were sent to different employees in different departments did not prevent them being considered together.
4. The emails communicated information that Territory Managers were being exposed to danger by driving in snowy conditions. That information did not become too general merely because the particular territories and individuals affected varied with time and location. Nor was it merely an expression of opinion.
5. Section 43B(1)(d) is distinct from section 43B(1)(b). A disclosure under paragraph (d) is not confined to information about breach of a legal obligation; endangerment of health or safety may constitute a qualifying disclosure without identification of such a breach.
6. The claim was sufficiently clear from the ET1 and the claimant’s witness statement. The Employment Judge therefore did not err in considering the three communications together. The claims could proceed to a full hearing.

• Employment Appeal Tribunal: dismissed Norbrook Laboratories (GB) Ltd’s appeal from the Employment Judge’s preliminary decision sent on 29 May 2012.