Norbrook Laboratories (GB) Ltd v Shaw (Victimisation Discrimination : Protected disclosure), Court of Appeal - United Kingdom Employment Appeal Tribunal, January 24, 2014, [2014] UKEAT 0150_13_2401

Resolution Date:January 24, 2014
Issuing Organization:United Kingdom Employment Appeal Tribunal
Actores:Norbrook Laboratories (GB) Ltd v Shaw (Victimisation Discrimination : Protected disclosure)
 
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Copyright 2014

Appeal No. UKEAT/0150/13/RN

EMPLOYMENT APPEAL TRIBUNAL

FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON, EC4Y 8AE

At the Tribunal

On 8 October 2013

Judgment handed down on 24 January 2014

Before

THE HONOURABLE MRS JUSTICE SLADE DBE

(SITTING ALONE)

NORBROOK LABORATORIES (GB) LTD APPELLANT

MR A SHAW RESPONDENT

Transcript of Proceedings

JUDGMENT

UKEAT/0150/13/RN

APPEARANCES

SUMMARY

VICTIMISATION DISCRIMINATION - Protected disclosure

On the facts of this case the Employment Judge did not err in holding that three emails from the Claimant to the Respondent taken together can amount to a qualifying disclosure within the meaning of Employment Rights Act 1996 section 43B(1) even though they were not sent to the same individual or department and taken separately each email was not such a disclosure. Goode v Marks and Spencer plc UKEAT/0442/09 15 April 2010 para 37 applied. Further, drawing a dangerous state of affairs to an employer's attention is capable of constituting a disclosure of information within the meaning of section 43B(1)(d). The information given in the emails was not too general to constitute disclosure of information within ERA section 43B(1). Appeal from the decision on the preliminary issue of whether the disclosures relied upon by the Claimant are capable of amounting to qualifying disclosure dismissed.

UKEAT/0150/13/RN

- 12 -

THE HONOURABLE MRS JUSTICE SLADE DBE

  1. Norbrook Laboratories (GB) Limited (`the Respondent') appeals from the judgment of Employment Judge Solomons (`the EJ') on a Pre-Hearing Review sent to the parties on 29 May 2012 (`the judgment') in which he decided that two emails sent by the Claimant's on 30 November and one on 6 December 2010 taken together are capable of amounting to qualifying disclosures within the meaning of the Employment Rights Act 1996 (`ERA') section 43B(1)(d).

  2. This preliminary issue arose in the determination of claims brought by Mr Shaw (`the Claimant') against the Respondent, his former employer, in respect of action said to have been taken against him on grounds of making an alleged protected disclosure within the meaning of ERA section 43B. The claims are of automatic unfair dismissal under ERA section 103A and of being subjected to a detriment under ERA section 47A both on the grounds of making a protected disclosure. There is no qualifying period of employment for a claim of `automatic' unfair dismissal under ERA section 103A. The Claimant had insufficient qualifying service to claim ``ordinary'' unfair dismissal. In light of his decision on the preliminary issue that the disclosures relied upon by the Claimant are capable of amounting to qualifying disclosures the EJ held that the claim of unfair dismissal and detriment on the grounds of public interest disclosure could proceed to a full hearing.

  3. Employment Rights Act 1996

    Section 43A:

    ``In this Act a `protected disclosure' means a qualifying disclosure (as defined by section 43B) which is made by a worker in accordance with any of sections 43C to 43H.''

    Section 43B:

    ``(1) In this Part a `qualifying disclosure' means any disclosure of information which, in the reasonable belief of the worker making the disclosure, tends to show one or more of the following:-

    ...

    (b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject;

    ...

    (d) that the health or safety of any individual has been, is being or is likely to be damaged.''

    Outline relevant facts

  4. The Respondent sells and distributes pharmaceuticals, primarily vetinary products. On 4 October 2010 the Claimant commenced employment with the Respondent as their Sales and Business Communications Manager. His duties included managing a team of Territory Managers who operated throughout the United Kingdom. In the course of their duties they drove to customers and potential customers to obtain sales.

  5. The winter of 2010 was particularly severe. In the early winter the roads were covered with snow following large snowfalls and main motorways were closed. In setting out the relevant background to the claims made by the Claimant, the EJ recorded evidence given that:

    ``4. ...Territory Managers were having difficulty getting to their appointments and they raised the matter with the Claimant, their Manager; they were, of course, concerned that if they were unable to travel to their appointments they would nevertheless be paid their wages.''

  6. The Claimant sent three relevant emails to the Respondent. At 10:41 on 30 November 2010 he emailed Alan Cuthbertson, the Respondent's Health and Safety Manager, as follows:

    ``Could you please provide me with some advice on what my Territory Managers should do in terms of driving in the snow. Is there a company policy and has a risk assessment been done.''

    The EJ held at paragraph 6:

    ``Leaving the story at that point it seems clear to me that this email could not be described as a disclosure of information, it is quite clearly taken by itself upon its face simply an enquiry about what Territory Managers should do and whether or not there was a company policy or a risk assessment in relation to driving in snowy conditions.''

    The Claimant was informed that there was no applicable company policy or risk assessment. Mr Cuthbertson made some suggestions about driving in the snow.

  7. The Claimant emailed Mr Cuthbertson again on 30 November 2010 at 12:04 in the following terms:

    ``I was hoping for some formal guidance from the company. The team are under a lot of pressure to keep out on the roads at the moment and it is dangerous. Do I log this as the formal...

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