Whistleblowing: a chain of email correspondence taken together can be a qualifying disclosure even if the emails are sent to different people

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Summary: The EAT has clarified that concerns raised with different people may, when viewed together, amount to a “qualifying disclosure” and attract whistleblowing protection. This is the case even if, taken separately, none of the disclosures are themselves a qualifying disclosure. Employers should therefore consider the totality of comments made by an employee and not just look at each comment in isolation.

You should read this update if you deal with whistleblowing issues in the workplace.

The 20-second summary

  • Concerns raised with different people may, when viewed together, amount to a “qualifying disclosure” and attract whistleblowing protection.
  • This is the case even if, taken separately, none of the disclosures are themselves a qualifying disclosure.
  • Employers should therefore consider the totality of comments made by an employee and not just look at each comment in isolation.

Manager raised concerns with different people about the safety of his team driving in heavy snowy conditions

In Norbrook Laboratories (GB) Ltd v Shaw, Mr Shaw managed a team of sales people who drove to customers to make sales visits. During a period of heavy and widespread snowfall, Mr Shaw emailed Norbrook’s Health and Safety manager twice. He first asked if the company had a policy for driving in snowy conditions. He then requested formal guidance and noted the dangerous conditions in which his team were being required to drive. A few days later, he emailed HR, reiterating the dangers of driving in the snow and repeating his previous requests for guidance. He was subsequently dismissed.

The EAT confirmed that separate correspondence could cumulatively amount to a qualifying disclosure…

Even though none of the emails sent by Mr Shaw individually amounted to a qualifying disclosure, it was clear that the last email to HR referred back to earlier communications with the Health and Safety manager. It was therefore legitimate to consider the emails together.

…even if the correspondence was sent to different recipients

It did not matter that Mr Shaw had raised his concerns with different people. However, had the HR manager not been aware of his previous communications, the correspondence could not have been viewed in its totality and may not have amounted to a qualifying disclosure.

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