Ms S Thompson v The Mayor and Burgesses of the London Borough of Merton: 2309153/2025

EMPLOYMENT TRIBUNALS

Case No 2309153/2025

Between

Ms S ThompsonClaimant

The Mayor and Burgesses of the London Borough of MertonRespondent

Before

Employment Judge Fowell

Date 16 October 2025

JUDGMENT

The application for interim relief is refused

REASONS

[1]These written reasons follow oral reasons given earlier today and as usual some editing has taken place to avoid repetition, and here and there some additional points are emphasised.

[2]This is a claim for interim relief, which is a powerful remedy available in certain circumstances - where for example an employee is dismissed for making a protected disclosure or for their trade union activities. If a tribunal is satisfied that they are likely to succeed in their claim at a final hearing, an order can be made for the employment to continue in the meantime.

[3]On this occasion there are two potential bases for the application, both whistleblowing and trade union activities. Miss Thompson is a trade union representative for the GMB. However, an application on that basis requires a supporting certificate from an authorised official of the union and there is no such certificate here. The focus of this hearing has to be on whether Miss Thompson’s dismissal was for making protected disclosures. 1 of 7

[4]There is a considerable history of litigation between Miss Thompson and Merton Borough Council. This is in fact the seventh claim she has brought against them. Before describing that litigation, the source of the disagreement is a restructure which was carried out in 2019. Miss Thompson's work for the council involves supporting young people through the criminal justice system, something she is passionate about. It is clear from the short hearing this morning that she takes an active approach to her work, as shown by her trade union role and other activities, including being Co-chair of the Staff Race Equality Network.

[5]The restructure involved the whole of the Children Schools and Families department and was brought about because government funding under its Transforming Families programme was coming to an end. Miss Thompson was unhappy about the change. Before the reorganisation her role, in essence, was as a Parenting Officer and afterwards it was as Parenting Co-Ordinator. That involved a reduction in pay band from 11 to 10.

[6]She raised a number of concerns about these changes and related matters during 2019 and went on to bring four claims against the council. These were eventually consolidated and heard together over 15 days from 10 to 28 June 2024. (The claims were numbered 2300217/2020, 2302818/2020, 2307642/2020, 2301372/2021).

[7]The outcome, from her point of view, was unsuccessful. The only allegation upheld was that her statement of terms and conditions of employment should have been amended to include her salary in the new role. Since the other claims were dismissed, no compensation was awarded.

[8]There were 40 alleged detriments, based on four disclosures or alleged disclosures, between March 2019 and March 2020. This inevitably required a detailed consideration of each allegation, and the Tribunal's conclusions are set out in a judgment of 161 pages. The list of issues is attached as an appendix to that judgment and the four disclosures, with some simplification were as follows: a) Miss Thompson raised a conflict of interest on the part of the Head of Service (Roberta Evans) between her council duties and her own personal business; b) She then wrote to more senior members of staff on 12 September 2019 about this conflict, alleging that Ms Evans was making payments to her own company whilst cutting the service; c) She also wrote to the Chief Executive on 17 March 2020 about a camping trip and the fact it was promoted on Ms Evans’ own business’s website; d) In November 2019 she raised a concern about volunteer staff being used instead of paid sessional workers, in breach of the volunteer policy.

[9]The council admitted that (b) and (c) were protected disclosures, not the other two, and the Tribunal agreed. 2 of 7

[10]Since then there have been two further claims. Number five (2304426/2023) was submitted on 15 August 2023 and number six (2300078/2025) on 22 November 2024. These raised allegations of disability discrimination and also of trade union detriment, but not of whistleblowing. That was confirmed by a case management order following a hearing on 12 August 2025. (Mr Davies has represented the Council at each of these hearings.)

[11]She has now been dismissed and brings this new claim. She says that her dismissal was a further act of victimisation by the Council for bringing claims again them and for her earlier protected disclosures.

[12]There may have been some confusion on her part between protected acts and protected disclosures, and that confusion is understandable. Bringing this claim, or any of the previous claims, is a ‘protected act’. Hence if she was dismissed for bringing a previous claim that would be an act of victimisation under section 27 Equality Act 2010. A protected disclosure, on the other hand, is a whistleblowing allegation, such as those already described, usually alleging some unlawful conduct on the part of the employer. For the purposes of this hearing she needs to show a sufficiently strong case that the dismissal was because of the earlier disclosures, not for bringing tribunal claims.

[13]The Council say that she has not been dismissed, she was just given notice on 24 September, to expire on 9 January 2026. They have provided a copy of the dismissal letter as confirmation. The contents were not disputed so the fact is that the contract of employment has not ended. That, however, is not a trump card, and Mr Davies did not seek to rely on that point at the hearing. Section 128 (1) Employment Rights Act 1996, which sets out the basis for awarding interim relief, does not require that an employee has been dismissed, only that they have presented a complaint of unfair dismissal, which Miss Thompson has. And she is entitled to do so. Section 111(3) provides that where a dismissal is with notice, a Tribunal shall consider a complaint if it is presented after the notice is given but before it takes effect. It is also understandable that Miss Thompson would want to bring a claim now, rather than wait until January. She has exhausted her sick pay entitlement and so is not being paid.

[14]Section 129 goes on to state that an application can succeed where it is ‘likely’ that the Tribunal will ultimately find in her favour, i.e. that the principal reason for dismissal was that she had made a protected disclosure.

[15]How likely is ‘likely’? The Employment Appeal Tribunal decided in the case of Taplin v C, Shippam Limited

[1978] ICR 1068

that this meant that the claim needed a ‘pretty good chance’ of success.

[16]That case has been considered more recently by the Employment Appeal Tribunal in Ministry of Justice v Sarfraz

2011 IRLR 562

, EAT. There, Mr Justice Underhill held that ‘likely’ does not mean simply ‘more likely than not’ but 3 of 7 connotes a ‘significantly higher degree of likelihood’, i.e. ‘something nearer to certainty than mere probability’. The appropriate test and approach

[17]It is of course very difficult to assess this probability at a short hearing of this sort and without hearing any evidence. In fact, rule 94 of the Employment Tribunal Rules of Procedure provides that the Tribunal ‘must not hear oral evidence’ unless it directs otherwise. That does not exclude documentary evidence however.

[18]In Al Qasimi v Robinson EAT 0283/17 Her Honour Judge Eady QC explained the correct approach: ‘By its nature, the application had to be determined expeditiously and on a summary basis. The [tribunal] had to do the best it could with such material as the parties had been able to deploy at short notice and to make as good an assessment as it felt able. The employment judge also had to be careful to avoid making findings that might tie the hands of the [tribunal] ultimately charged with the final determination of the merits of the points raised. His task was thus very much an impressionistic one: to form a view as to how the matter looked, as to whether the claimant had a pretty good chance and was likely to make out her case, and to explain the conclusion reached on that basis; not in an over-formulistic way but giving the essential gist of his reasoning, sufficient to let the parties know why the application had succeeded or failed given the issues raised and the test that had to be applied.’ [Emphasis added]

[19]So, I have to form a view on the material available whether there is a pretty good chance overall (in the sense of much nearer to certainty that an even chance) that this claim will succeed in due course. The material presented and impression formed

[20]I had a considerable amount of documentation at the outset of the hearing, all in separate instalments. In addition to the documents already mentioned, Miss Thompson provided me with an email with 16 attachments, together with a further email to the GMB requesting a certificate for this hearing, all of which contained a good deal of overlapping material. Altogether it amounted to 162 pages on her part.

[21]The ET1 for this claim was also included. That is perhaps the key document for the purposes of this application. It states: “Between 2018–2019, I made public interest disclosures, including conflicts of interest by senior managers. On 14 February 2020, an internal audit upheld these concerns and confirmed misconduct by Roberta Evans, who invoiced through her private company. Shortly after, she led a restructure which cut the Troubled Families Team, the Serious Violence & Gangs Worker role, and my own PEIP Parenting post in a sham process. 4 of 7 In 2022, the Surrey Comet reported a 33% rise in knife crime during 2019. As a union rep, I publicly challenged the Scrutiny Committee, linking this rise to the restructure and the loss of frontline services.”

[22]In this context the reference to 2022 is not to a separate disclosure but to a later report which, she says, validated her concerns.

[23]The previous public interest disclosures therefore appear to be identical to those already considered in the hearing in June 2024, or at least to the first three, as set out above.

[24]Miss Thompson supported her application with a separate statement which added : “Whistleblowing: I raised protected disclosures about mismanagement, cronyism, and conflicts of interest, including the misuse of public funds, unequal pay practices, and deliberate attempts to mislead service users regarding accreditation.”

[25]The reference to unequal pay practises is, I understand, of reference to the use of volunteers rather than to workers receiving a payment for each session , which is the last of the protected disclosures.

[26]It follows therefore that the basis of the application for relief is that Miss Thompson was dismissed for raising disclosures which were the subject of the first four claims and which the tribunal has already held did not result in any detriment to her. Indeed two of the disclosures in question were found not to be protected disclosures at all, including the one in relation to sessional workers.

[27]I felt it was important for Miss Thomson to address squarely this point. I asked, in short, why the council would dismiss her in connection with allegations after five or six years if they did not subject her to any detriment during the course of her employment?

[28]Her response was that given her mental health at the time she had not been able to identify for the previous Tribunal the relevant documents in the bundle, which I note it was over 6000 pages, and that afterwards she had had taken several months, with support, to reflect on matters and was now in a position to explain things better. However, her detailed statement for this hearing identifies a number of documents as part of the process resulting in her dismissal but I was not taken to anything in particular which had not been available to the previous tribunal or considered by them.

[29]The respondent’s position is that Miss Thompson was dismissed for some other substantial reason, namely a breakdown in the relationship of trust and confidence between her and her managers. It is clear from the documents referred to in Miss Thompson statement that shortly after the tribunal hearing in June 2024, steps were taken in that direction. They began with a letter dated 11 July 2024 from Ms Mildred Phillips (Director of People and Culture Change) which sets out in detail the basis for her concerns. She noted that Miss Thompson had 5 of 7 had six different line managers but felt that ‘none of them were working from a position of mutual trust and confidence’, that the decision not to uphold her grievance appeal proved that the Council had corrupt and unethical leaders, and continued to refer to the ‘Roberta Evans plot’. It mentioned other communications from her in 2024 in which she described herself as being intentionally targeted and ‘professionally gang stalked’ from 21 June 2019 - the date of the initial email proposing her new role - and that everyone had colluded to target her.

[30]Subsequently she was invited to a meeting to consider whether there was a sufficient basis of trust and confidence for the employment relationship to continue. That was on 24 September 2025. The minutes have been provided, together with a ‘moving forward’ proposal from by Miss Thompson, something Mr Davies described as a proposal on her part to revert to her previous role.

[31]That led to the outcome letter on 26 September 2025, according to which there had been a significant breakdown in the relationship of trust and confidence, with the result that the relationship was now irretrievably damaged.

Conclusions

[32]In the circumstances there is nothing obviously implausible about that conclusion, given that so many claims had been submitted, resulting in a 15 day hearing, and after which Miss Thompson remained of the view that she was the victim of unethical conduct by senior managers.

[33]It is simply not appropriate for me to try to go behind the findings of the previous tribunal even if there were evidence which contradicted their conclusions, but there is not. I have to work on the basis that the council did not subject Miss Thompson to any detriments for raising these disclosures. It would be surprising if they had patiently defended those proceedings and only then moved to dismiss her. That is of course a possible outcome and nothing in this decision should be taken as a finding of fact or even a view on the evidence, since no evidence has been heard. But my impression from the correspondence I have seen is that there was no particular rush on the part of the Council to reach their ultimate conclusion and Miss Thompson had a full opportunity to address their concerns about the breakdown in the working relationship. Ultimately that is a potentially valid reason for dismissal and it is quite separate and distinct from an act of retribution for raising protected disclosures.

[34]Overall therefore the material put forward does not give the impression that the dismissal was likely to have been the result of protective disclosures and so the application is dismissed. 6 of 7