Mr O E Olarewaju v Bupa Care Services Ltd: 2307277/2025
EMPLOYMENT TRIBUNALS
Case No 2307277/2025
Between
Mr O E OlarewajuClaimantBupa Care Services LtdRespondent
Before
Employment Judge SudraMr. A. Sugarman (instructed by Counsel) for respondentDate 25 September 2025
JUDGMENT
The Claimant’s application for interim relief is refused.
REASONS
[1]The purposes of the Hearing was to adjudicate upon the Claimant’s application for interim relief.
The Hearing
[2]The Hearing was listed for one-day and both parties attended via CVP video conference.[3]By a claim form presented on 15th August 2025 the Claimant made an application for interim relief under s.128 Employment Rights Act 1996 (‘ERA’). The Claimant’s employment terminated on 8th August 2025 for reason of gross misconduct and therefore, the claim for interim relief has been brought within the time frame specified in s.128 (4) ERA. The Notices of Hearing are dated 22nd August 2025 and 19th September 2025, so the parties have had seven days’ notice1. 1 This Hearing was listed to be heard on 12th September 2025 but did not proceed due to judicial unavailability.[4]The Claimant has made claims of unfair dismissal, whistleblowing detriments, discrimination and dismissal due to having made a protected disclosure in the public interest and victimisation contrary to s.39(4) Equality Act 2010 (‘EqA’).[5]The Claimant already has other claims in the Tribunal under claim number 2303249/2025 and 2305764/2025 (formerly 6009223/2025) which were submitted prior to the Claimant’s employment terminating and have been consolidated. For the purposes of today’s Hearing I was only considering the claim presented on 15th August 2025.[6]I do not make any findings of fact, however, it is useful to summarise the Claimant’s claim under s.103A ERA and the parties’ submissions. Documents[7]I had before me: i. A bundle from the Respondent consisting of 84 pages; ii. a bundle from the Claimant consisting of 494 pages; iii. a witness statement from the Claimant; iv. and skeleton arguments (with authorities) from both parties. I heard oral submissions from both the Claimant and Mr. Sugarman during the Hearing.[8]The Claimant was employed by the Respondent on 24th July 2023 as care assistant. The Respondent is provider of long-term care for older people, providing residential, nursing and dementia care to more than 6,000 residents through over 118 care homes in the UK. The Claimant was summarily dismissed from his role on 8th August 2025 for gross misconduct.[9]The Claimant’s case is that he made protected disclosures in late 2024 as follows,(a) (A) On 10 October 2024, the Claimant raised a complaint via the Respondent’s ‘Speak Up’ helpline, alleging that he had been deliberately denied pay for his paternity leave in September 2024;(b) (B) On 8 November 2024 the Claimant raised a complaint to the Home Manager, alleging that he had been sexually harassed by a colleague;(c) (C) On 22 November 2024, the Claimant raised a further complaint via the Respondent’s ‘Speak Up’ helpline, reiterating the alleged sexual harassment complaint and raising further allegations in relation to pay for weekend work and that his manager was not providing him with the support he wanted;(d) (D) On 7 December 2024, the Claimant emailed the Home Manager in relation to the staffing levels and requested that his breaks were allocated; (F) On 9 December 2024, the Claimant raised a further ‘Speak Up’ case reiterating the same allegations and alleging ongoing mistreatment; (G) 23 January 2025 a report on Respondent’s care system that a resident was sick; and (H) 7 August 2025, the Claimant raised the issue of falsifying of certificates at his disciplinary hearing.[10]On 7th February 2025 the Claimant was suspended from duty, on full pay, because he was alleged to have committed gross misconduct. Following an investigation into the allegations against the Claimant he was invited to a disciplinary hearing scheduled for 7th August 2025 to be chaired by Bryony John (Home Manager).[11]The disciplinary hearing convened as planned and the Claimant attended and was accompanied by his companion of choice, Bola Popoola. Having considered the evidence available and having had regard to the Claimant’s representations, Ms. John decided that the only viable sanction was summary dismissal. The Claimant was informed of Ms. John’s decision on 8th August 2025 and he was advised of his right to appeal the dismissal. The Claimant’s Submissions[12]The Claimant’s submissions were verbose. He said that he made disclosures in good faith as he believed that the Respondent had breached legal obligations and that this had had an adverse effect upon his health. Although the Claimant’s submissions were lengthy, they were mainly concentrated on his belief that there had been a conspiracy to dismiss him and that in order to do this, the Respondent had falsified documents and its staff had colluded to discredit his version of events when he had complained of being sexually assaulted. The claimant then went through each of his alleged disclosures and explained why he had made them. The Respondent’s Submissions[13]Mr. Sugarman supplemented his skeleton argument with oral submissions. The law was correctly and fairly set out in Mr. Sugarman’s skeleton argument. I heard that none of the Claimant’s disclosures identified a breach of a legal requirement and that they related to matters personal to the Claimant and were incapable of meeting the definition of a protected disclosure. I was also reminded that in an application for Interim Relief the bar was deliberately set very high, due to the obvious arduous effects a successful application could have on a Respondent, and that ‘…The Judge is not required (and would be wrong to attempt) to make a summary determination of the claim itself’ (Parsons v. Airplus International Ltd UKEAT/0023/16/JOJ, 4 March 2016, [2016] All ER (D) 217 (Mar)).[14]The Respondent had received multiple complaints from several staff about the Claimant’s alleged intimidating and aggressive behaviour. Faced with a plethora of complaints it was said that the Respondent had no choice but to investigate the allegations as it would have been remiss of the respondent not to do so. The investigation was conducted by a neutral and unbiased manager who had had no previous involvement with the Claimant and she had undertaken a thorough investigation interviewing at least 13 members of staff. Following the investigation there was a case to answer and thus, a disciplinary hearing was held which had resulted in the Claimant’s summary dismissal.[15]Mr. Sugarman submitted that even on a cursory consideration of the papers it was readily apparent that the Claimant was investigated and dismissed because of his misconduct and not because he had raised concerns (which the Claimant says were protected disclosures and the Respondent maintains that they were not). There was no nexus between the Claimant’s disclosures and his dismissal and the Claimant had failed to raise a prima facie case in this respect. Mr. Sugarman concluded by saying that the respondent had tried to informally manage the Claimant and could have taken formal action at am earlier stage but had not. Therefore, there was a ‘pretty good chance’ that the Claimant would fail to establish that he had made any protected disclosures and his application for Interim relief was far from being made out.
The Law
[16]By virtue of s.94 Employment Rights Act 1996 (‘ERA’), employees have, subject to certain conditions, a right not to be unfairly dismissed. By s.103A ERA, where the reason, or if more than one, the principal reason, for dismissal is that the employee made a protected disclosure within the meaning of s.43A ERA, the dismissal is automatically unfair.[17]By s.230 ERA, an employee is someone who has entered into or works under (or where the employment has ceased, worked under) a contract of employment. A contract of employment is defined as a contract of service or apprenticeship.[18]Dismissal, for the purposes of a complaint of unfair dismissal, is defined at s.95 ERA: ‘95 Circumstances in which an employee is dismissed. (1)For the purposes of this Part an employee is dismissed by his employer if (and, subject to subsection (2) only if)— (a)the contract under which he is employed is terminated by the employer (whether with or without notice), (b)he is employed under a limited-term contract and that contract terminates by virtue of the limiting event without being renewed under the same contract, or (c)the employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer’s conduct.’[19]In Williams v. Michelle Brown AM UKEAT/0044/19/OO at [9], HHJ Auerbach summarised the five issues, which a Tribunal is required to decide in relation to whether something amounts to a qualifying disclosure: ‘It is worth restating, as the authorities have done many times, that this definition breaks down into a number of elements. First, there must be a disclosure of information. Secondly, the worker must believe that the disclosure is made in the public interest. Thirdly, if the worker does hold such a belief, it must be reasonably held. Fourthly, the worker must believe that the disclosure tends to show one or more of the matters listed in subparagraphs (a) to (f). Fifthly, if the worker does hold such a belief, it must be reasonably held.’ (My emphasis). 9. In order for a qualifying disclosure to be a protected disclosure it must be made in accordance with s.43C to 43H ERA. 10. The ‘reason’ or ‘reasons’ for dismissal is/are the factor(s) operating on the decisionmaker’s mind which causes him/her to take the dismissal decision (Croydon Health Services NHS Trust v. Beatt [2017] ICR 1420). In some circumstances, the net could be cast wider than the person who made the decision to dismiss, such as where the facts known to, or beliefs held by, the decision-maker have been manipulated by another person (Royal Mail Ltd v. Jhuti [2019] UKSC 5 and explained further in Kong v. Gulf International Bank (UK) Limited EA-2020-000357- JOJ). Interim Relief 11. SS.128 to 130 ERA make provision for interim relief. This is a remedy for (certain types of) unfair dismissal. It is worth setting out s.128 in full and part of s.129 ERA: ‘128 Interim relief pending determination of complaint. (1)An employee who presents a complaint to an employment tribunal that he has been unfairly dismissed and— (a)that the reason (or if more than one the principal reason) for the dismissal is one of those specified in— (i)section…. 103A… may apply to the tribunal for interim relief. (2)The tribunal shall not entertain an application for interim relief unless it is presented to the tribunal before the end of the period of seven days immediately following the effective date of termination (whether before, on or after that date). (3)The tribunal shall determine the application for interim relief as soon as practicable after receiving the application. (4)The tribunal shall give to the employer not later than seven days before the date of the hearing a copy of the application together with notice of the date, time and place of the hearing. (5)The tribunal shall not exercise any power it has of postponing the hearing of an application for interim relief except where it is satisfied that special circumstances exist which justify it in doing so. 129 Procedure on hearing of application and making of order. (1)This section applies where, on hearing an employee's application for interim relief, it appears to the tribunal that it is likely that on determining the complaint to which the application relates the tribunal will find— (a)that the reason (or if more than one the principal reason) for the dismissal is one of those specified in— (i)section…. 103A, or […] (2)The tribunal shall announce its findings and explain to both parties (if present)— (a)what powers the tribunal may exercise on the application, and (b)in what circumstances it will exercise them. (3)The tribunal shall ask the employer (if present) whether he is willing, pending the determination or settlement of the complaint— (a)to reinstate the employee (that is, to treat him in all respects as if he had not been dismissed), or (b)if not, to re-engage him in another job on terms and conditions not less favourable than those which would have been applicable to him if he had not been dismissed.’ 12. Rule 95 provides that the hearing should be conducted as a Preliminary Hearing within Rules 53 to 56. The proper approach is as follows (Parsons v. Airplus UKEAT/0023/16/JOJ4 March 2016 at para [8]): ‘On hearing an application under section 128 the Employment Judge is required to make a summary assessment on the basis of the material then before her of whether the Claimant has a pretty good chance of succeeding on the relevant claim. The Judge is not required (and would be wrong to attempt) to make a summary determination of the claim itself. In giving reasons for her decision, it is sufficient for the Judge to indicate the “essential gist of her reasoning”: this is because the Judge is not making a final judgment and her decision will inevitably be based to an extent on impression and therefore not susceptible to detailed reasoning; and because, as far as possible, it is better not say anything which might pre-judge the final determination on the merits.’13. Interim relief should be ordered only if it appears that it is likely that on determining the complaint the Tribunal will find that the reason or principal reason for the dismissal was a proscribed ground: s.129 ERA. There is judicial guidance on the meaning of ‘likely’ in this context: 1.1. A “pretty good chance of success”: Taplin v. C Shippam Ltd [1978] IRLR 450 [23]; Wollenberg v. Global Gaming Ventures (Leeds) Ltd (UKEAT/0053/18)); 1.2. “something nearer to certainty than mere probability”: Ministry of Justice v. Sarfraz [2011] IRLR 562 at [19]; and 1.3. a “good arguable case” is not enough: Parsons v. Airplus UKEAT/0 023/16/JOJ 4 March 2016.14. The hurdle which the Claimant must clear is set relatively high. There is good reason for this. As the EAT noted in Dandpat v. University of Bath UKEAT/0408/09, 10 November 2009 unreported: ‘20. … We do in fact see good reasons of policy for setting the test comparatively high, in the way in which this Tribunal did, in the case of applications for interim relief. If relief is granted the respondent is irretrievably prejudiced because he is obliged to treat the contract as continuing, and pay the claimant, until the conclusion of proceedings: that is not [a] consequence that should be imposed lightly’.15. The Tribunal cannot be criticised for concluding that matters are not sufficiently clear cut at the interim relief stage for it to have sufficient confidence in the eventual outcome to grant interim relief: Parsons at [18]. Discussions and Conclusions16. For the purposes of this Hearing, the issue is whether under s.129 ERA it appears that it is likely that the reason for the dismissal is was making a protected disclosure as per s. 43B ERA. In order to determine ‘whether it is likely’ the Claimant will succeed at a full hearing the EAT said in London City Airport v. Chacko 2013 ILR 610, that this requires the Tribunal to carry out an ‘expeditious summary assessment’ as to how the matter appears on the material available, doing the best it can with the untested evidence advanced by each party. Clearly this involves less detailed scrutiny than will be undertaken at the full final hearing.17. ‘Likelihood’ has been interpreted to mean ‘a pretty good chance of success’ at the full hearing - Taplin. The burden of proof was intended to be greater than that at a full hearing, where the Tribunal only needs to be satisfied on the balance of probabilities that the Claimant has made out her case - or 51% or better. A pretty good chance is something nearer to certainty than mere probability.18. I conclude that the Claimant has not satisfied that burden (which is a very difficult one to surmount). He has not convinced me that his claim for being dismissed for making a protected disclosure is nearer to certain, rather than a possibility. He has not demonstrated at this very early stage in the proceedings, that it is likely his claim will succeed at a full hearing, nor that it has a pretty good chance of success. 19. I am mindful of the fact that the complexity of a claim is not sufficient reason to conclude it does not have pretty good chances of success, In Raja v. Secretary of State for Justice UKEAT/0364/09, the EAT criticised an Employment Judge's decision that interim relief orders should only be made in connection with simple factual disputes.[20]These are not matters that I can, based on the evidence currently available, assess in such a way as to enable me to conclude that the claimant has a pretty good chance of success.[21]For these reasons the application is refused. RECONSIDERATION JUDGMENT The Claimant’s application for reconsideration of the reserved judgment sent to the parties on 2nd October 2025 is refused and the decision in that judgment is confirmed. Application
The Law
[1]The Respondent applied, under Rule 69 of the Employment Tribunal Procedure Rules 2024, for reconsideration of the Tribunal’s decision.[2]The Claimant, on 16th October 2025, has applied for a reconsideration of my judgment as he says, ‘The judgment should be reconsidered in the interests of justice due to procedural irregularities, overlooked evidence and arguments (including mischaracterization of pleaded disclosures and unpleaded but evidenced matters), and an appearance of bias, which prejudiced the assessment of my "likely" success on whistleblowing unfair dismissal (s.103A ERA).’[3]The Claimant’s reconsideration application identifies five grounds upon which reconsideration is sought. Ground 1: ‘Procedural Irregularity: Failure to Review Claimant's Bundle.’[4]Both the Claimant and Respondent had provided electronic copies of a bundle but I had only been provided with the Respondent’s skeleton argument (by the Tribunal administration) in advance of the Hearing. I asked my clerk to forward me the Claimant’s bundle, which she duly did, and Mr. Sugarman (Counsel for the Respondent) emailed the Respondent’s bundle to me. Prior to reaching a decision I had read relevant documents from both bundles.[5]There was no procedural impropriety or failure to read relevant documents from the Claimant’s bundle. Ground 2: ‘Overlooked Evidence and Arguments: Mischaracterization of Pleaded Disclosures and Fabrication’[6]As is evident from my reserved judgment, no evidence was overlooked. Summarising text from the bundles when writing a judgment is not ‘mischaracterization’ (sic) as the Claimant alleges. Ground 3: ‘Appearance of Bias: Judge and Barrister Both Fee-Paid Employment Judges’[7]In correspondence sent to the Tribunal after submission of his reconsideration request, the Claimant’s accepts he feel into error and wrote, ‘Under Rule 29, I request amendment to Ground 3 to correct a factual error discovered post-submission: Employment Judge Sudra is a Salaried Employment Judge (London South, effective April 20, 2023), with prior fee-paid role in the First-tier Tribunal (Social Entitlement Chamber). Mr. Sugarman is Fee-paid (London East, effective October 2021). This refines but does not alter the appearance of bias argument (per Porter v Magill [2001] UKHL 67). As a LiP, this was a good-faith mistake; please amend or withdraw Ground 3 if preferred...’ (My underlining). Ground 4: ‘Errors in Para 15: Respondent's Submissions Lacked Evidence[8]There were no errors in paragraph 15 of the judgment. It is the Claimant’s subjective view that the Respondent’s submissions lacked evidence. I did not share this view. Ground 5: ‘Inconsistencies in Decision Maker's Statements and Overlooked Context on Sara Vidal's Allegation’[9]As with Ground 4 (supra) it is the Claimant’s view that the ‘judgment overlooked inconsistencies in the decision maker's (Bryony John) statements.’ It is not the reality.
Relevant Law
[10]There is an underlying public policy principle in all judicial proceedings that there should be finality in litigation, and reconsideration applications are a limited exception to that rule. The importance of finality was confirmed by the Court of Appeal in Ministry of Justice v. Burton and anor [2016] EWCA Civ 714 in July 2016 where Elias LJ said that: ‘the discretion to act in the interests of justice is not open-ended; it should be exercised in a principled way, and the earlier case law cannot be ignored. In particular, the courts have emphasised the importance of finality (Flint v. Eastern Electricity Board [1975] ICR 395) which militates against the discretion being exercised too readily; and in Lindsay v. Ironsides Ray and Vials [1994] ICR 384 Mummery J held that the failure of a party's representative to draw attention to a particular argument will not generally justify granting a review.’[11]Similarly, in Liddington v. 2Gether NHS Foundation Trust EAT/0002/16 the EAT chaired by Simler P (as she then was) said in paragraph 34 that: ‘a request for reconsideration is not an opportunity for a party to seek to relitigate matters that have already been litigated, or to reargue matters in a different way or by adopting points previously omitted. There is an underlying public policy principle in all judicial proceedings that there should be finality in litigation, and reconsideration applications are a limited exception to that rule. They are not a means by which to have a second bite at the cherry, nor are they intended to provide parties with the opportunity of a rehearing at which the same evidence and the same arguments can be rehearsed but with different emphasis or additional evidence that was previously available being tendered.’[12]In common with all powers under the 2024 Rules, reconsideration under rule 70 must be conducted in accordance with the Overriding Objective which appears in rule 3, namely, to deal with cases fairly and justly. Achieving finality in litigation is part of a fair and just adjudication.[13]Reconsideration is not a means by which to have a second bite at the cherry, or is it intended to provide parties with the opportunity of a rehearing at which the same evidence and the same arguments can be rehearsed but with different emphasis or additional evidence that was previously available being tendered.[14]Tribunals have a wide discretion whether or not to order reconsideration. Where a matter has been fully ventilated and properly argued, and in the absence of any identifiable administrative error or event occurring after the hearing that requires a reconsideration in the interests of justice, any asserted error of law is to be corrected on appeal and not through the back door by way of a reconsideration application.[15]For all of the above reasons, the Claimant’s application is refused in its entirety.