Whistleblowing

The Employment Rights Act 1996 protects those who make disclosures that tend to show failure to comply with a legal obligation. Protection is against any detriment or a decision to dismiss.

To qualify, a disclosure must contain factual information (not just opinion), which tends to show one of the things listed in Section 43B (1). But what happens when an employee makes several disclosures, to different people, which individually do not tend to show a failure to comply with a legal obligation, but which when taken together do?

The Employment Appeal Tribunal in Norbrook Laboratories (GB) Ltd v Shaw decided that emails sent separately by a manager to the Health & Safety Officer and the HR Department of his employer, regarding driving in icy conditions, when read together did amount to a protected disclosure. The earlier communications could be taken to be ’embedded’ in those that followed, because they had been referred to.

This case is a useful reminder to employers that whistleblower protection will often engage in subtle ways. Employers and their advisors must be careful to identify protected disclosures and ensure they act to protect whistleblowers and avoid adverse liabilities and publicity.

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