Protected disclosure - employees driving in snowy conditions

Whistle blowing has made recent headlines on more than one occasion.  Employment law says that workers must not be subjected to any detriment by their employer because they have made a protected disclosure, i.e. blown the whistle on wrong-doing in the workplace.  If an employee is dismissed and the principle reason for that dismissal is whistle-blowing, it is deemed to be automatically unfair and the usual two-year qualifying period of employment will not apply.

However, sometimes complaints are not immediately recognised as whistle-blowing and that can be problematic for employers.

This is illustrated by a case where a manager received concerns from members of his team that they were experiencing difficulties travelling to appointments because of significant snowfall during the winter of 2010.

The manager contacted his health and safety manager and asked for information about the company’s policy concerning driving in snowy conditions and whether risk assessments had been carried out.  He was informed that there was no applicable company policy or risk assessment.

He responded and said that he was hoping for formal guidance, due to pressure on his team to continue driving in dangerous conditions.

He later sent an email to his company’s HR department, in which he sought clarification about what his team would be paid if they were unable to travel due to snow.  He also repeated his request for formal guidance on driving in snowy conditions and referred to his duty of care for his team’s health and safety.

The manager was subsequently dismissed.  When he brought a claim for automatic unfair dismissal he stated he had suffered a detriment on the grounds of making a protected disclosure.

During the preliminary hearing it was disputed that his emails amounted to a protected disclosure.  The tribunal decided, however, that the emails taken as a whole did amount to a protected disclosure , even though they did not when read individually.  The Employment Appeals Tribunal agreed with this decision.

This case illustrates that employers should be alert to issues that could be construed as whistle blowing and should ensure there is a process for assessing complaints made by their employees.

For more information on protected disclosure, please contact Reggie Lloyd on 01206 217347 or reggie.lloyd@birkettlong.co.uk.

The contents of this article are intended for general information purposes only and shall not be deemed to be, or constitute legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article.