Daniel Barnett: Can a single protected disclosure be made in multiple communications to an employer, even if the individual communications are not protected disclosures?
Yes, held the EAT in Norbrook Laboratories (UK) Ltd v Shaw, upholding the tribunal’s decision on the preliminary issue of whether the Claimant had made a protected disclosure.
The Claimant, who managed a sales team, had sent separate emails to different managers expressing concerns over the hazards of staff driving in snowy conditions. He alleged that his later dismissal was automatically unfair as a consequence of that protected disclosure.
It was held that separate communications considered together, even if made to different people, can amount to a protected disclosure even if separately they would not do so. The EAT noted that on the facts, the recipient of a later email from the Claimant would have been aware of his previous communication. Following the case of Goode v Marks and Spencer, one communication may be regarded as “embedded” in another; there was no error in considering the Claimant’s communication with the Respondent as a whole in considering whether or not there had been a protected disclosure. The EAT also noted that the emails communicated“information” rather than simply making allegations or expressing opinion.