Olympic cyclist, Jess Varnish, made claims at the Manchester Employment Tribunal that she was subject to unlawful detriments having made protected disclosures (a.k.a. whistle blown). This centred on the termination and non-renewal of her Podium Performance Agreement when she was a professional cyclist with the GB Cycling team.
But she never got as far as finding out whether her claim was valid, because the tribunal found that she was not an “employee” or a “worker” and so didn’t have the correct employment status to bring the whistleblowing claim at all.
But the challenges wouldn’t have ended there.
Varnish would have needed to have shown that she qualified for whistle-blowers protection in the first place by making a “protected disclosure” and then, that the detriments she suffered were caused by making protected disclosures.
What is a Protected Disclosure?
The definition of a “protected disclosure” is legally complex and technical. Much of the wording in the Employment Rights Act 1996 is not defined by the Act itself and so we need to look for the court’s interpretation to help us understand the practical meaning. The statutory definition of a protected disclosure falls into different parts:
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What must there be?
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Definition
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Key Words
(These are all loaded terms which have legal significance)
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| Qualifying Disclosure |
Any disclosure of information which, in the reasonable belief of the worker making the disclosure, is made in the public interest and tends to show one or more “relevant failures”. |
- “disclosure”
- “information”,
- “reasonable belief”
- “public interest”
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What is a Relevant Failure?
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A “relevant failure” is defined as:
(a) that a criminal offence has been committed, is being committed or is likely to be committed,
(b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject,
(c) that a miscarriage of justice has occurred, is occurring or is likely to occur,
(d) that the health or safety of any individual has been, is being or is likely to be endangered,
(e) that the environment has been, is being or is likely to be damaged, or
(f) that information tending to show any matter falling within any one of the preceding paragraphs has been, is being or is likely to be deliberately concealed.
The qualifying disclosure become a “protected disclosure” if it is made to the appropriate person.
This is the first in a series of articles where we decode statutory definitions by looking at practical examples from employment tribunal cases on whistleblowing.
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An Example: Norbrook Laboratories (GB) Ltd v Shaw (UKEAT/0150/13/RN)
Mr Shaw sent 3 emails to his employer about his concern that the pressure on his team of sales personnel to drive on wintry roads was dangerous and that it could affect health and safety. The first email said:
“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 second email said:
“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 guidance?”
The third email said:
“I am only after a simply [sic] policy statement to increase transparency and help build morale and goodwill within the team. As their manager I also have a duty of care for their health and safety. Having spent most of Monday and Friday driving through snow I know how dangerous it can be. In addition the time spent battling through the snow is unproductive; they can gain more sales by phoning customers. If they are not going to be paid then I have to put in contingencies for diverting calls to those team members still on the road. In the absence of any formal guidance I take full responsibility for the directions given to my team.”
The tribunal considered whether the second and third emails were capable of amounting to qualifying disclosures by having the necessary quality of information, or whether these were no more than an allegation (which would not have been sufficient).
The tribunal looked at the correspondence as a whole and found that while some of this was Mr Shaw asking questions, there were a number of statements as well. Ultimately the tribunal was satisfied that:
• Mr Shaw was disclosing information, i.e. the dangerousness of the road conditions for his team driving.
• The information related about the health or safety of his team being or likely to be endangered.
• It was not too general or a non-specific concern without identifying a ‘relevant failure’.
• The emails could be read together, even if taken on their own, they would not fall within the definition.
Watch out for more articles in this series where we show you illustrations of what has amounted to protected disclosures.
Learn More About Employment Law
The information in this article should not be relied on as legal advice. Every case is different, and we recommend taking bespoke legal advice.
If any of the issues in this article are relevant to you, please contact us to speak to one of our employment solicitors or submit an enquiry form online now.
