Employment Judge S PoveyMr Anderson (instructed by Counsel) for respondentDate 24 September 2025
REASONS
[1]The is an application by Hezron Simpson (‘the Claimant’) for an order for interim relief, pursuant to sections 128 - 132 Employment Rights Act 1996 (‘ERA 1996’), against his former employer, Britvic Soft Drinks Ltd (‘the Respondent’).[2]By way of background, the Claimant was employed by the Respondent as a Team Technician from 5 February 2024 until his dismissal on 15 August 2024. On 20 August 2024, the Claimant submitted his claim to the Tribunal, which contained a number of complaints against the Respondent, including an allegation that his dismissal was automatically unfair as the reason (or principal reason) was that he had made protected disclosures (as defined by Part IVA, and contrary to section 103A, of the ERA 1996). - 1 -[3]In addition, the Claimant applied for interim relief (‘the application’), that is, an order for the continuation of his contract of employment pending the determination of his substantive claim (per sections 128 & 129 of the ERA 1996).[4]It was not in dispute that the application was made in accordance with the strict requirements under section 128. What was in dispute was whether the requirements under section 129(1) were met, which provides as follows (so far as relevant): …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,
The hearing
[5]The Claimant was represented by Mr Lennard and the Respondent by Mr Anderson. The Claimant provided a bundle of supporting documents (which included his witness statement). The Respondent relied upon a statement from Neil Pickering, it’s Site Production Manager, to which were exhibited a number of documents. I also received oral and written submissions from Mr Lennard and Mr Anderson.[6]As per Rule 94 of The Employment Tribunal Procedure Rules 2024, I did not hear any oral evidence.
The applicable law
[7]In deciding whether it appears likely to me at this stage that at the final hearing it will be determined that the Claimant was dismissed for making protected disclosures, I was mindful of the following legal principles and guidance (in summary): 7.1. It is for the Claimant to show that the test in section 129(1) is met; 7.2. The test must be met in respect of every aspect of the section103A complaint; 7.3. Given the expeditious nature of the interim relief provisions, my task is to make a broad assessment on the material available, which necessarily involves far less detailed scrutiny of the case than will be undertaken at the final hearing; - 2 - 7.4. When considering the ‘likelihood’ of the Claimant succeeding at the final hearing, the correct test to be applied is whether he has a ‘pretty good chance of success’ at the full hearing (per Taplin v C Shippam Ltd 1978 ICR 1068, EAT). The test is not ‘real possibility’ or ‘reasonable prospect’ of success, or a 51 per cent or better chance of success; 7.5. The burden of proof in an interim relief application is intended to be greater than that at the final hearing, where the Tribunal need only be satisfied on the ‘balance of probabilities’ that the Claimant has made out his or her case — i.e. the ‘51 per cent or better’ test. (see also Dandpat v University of Bath EAT 0408/09 and in London City Airport Ltd v Chacko UKEAT/0013/13/LA); and 7.6. ‘Likely’ does not mean simply ‘more likely than not’ but connotes a significantly higher degree of likelihood, i.e. ‘something nearer to certainty than mere probability’ (Ministry of Justice v Sarfraz 2011 IRLR 562, EAT).[8]In Al Qasimi v Robinson EAT 0283/17 Her Honour Judge Eady QC (as was), summarised the approach to determining interim relief applications as follows (at [59]): …By its nature, the application [for interim relief in a s.103A case] 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. Analysis & conclusions[9]The basic relevant chronology of the case was as follows: 9.1. On 24 February 2025, the Claimant was spoken to by the Respondent’s Production Manager, Lee Whiting, regarding alleged discrepancies with his overtime records (it remains in dispute what was actually said during that meeting). The Respondent says that the Claimant admitted wrongdoing and was told by Mr Whiting that the matter would be investigated. The Claimant denies admitting to any wrongdoing. - 3 - 9.2. On 25 February 2025, the Claimant went on sick leave until June 2025. 9.3. An investigation was undertaken by Mark Baldwin, the Respondent’s Production Unit Manager, during which he met with the Claimant. Mr Baldwin produced a Disciplinary Fact-Finding Summary Report, which detailed what the allegations were that he had investigated, the findings he had made and his recommendation that the matter should proceed to a disciplinary hearing. 9.4. A disciplinary hearing took place on 15 August 2025, presided over by Mr Pickering. By a letter of the same date, Mr Pickering informed the Claimant that he was dismissed with immediate effect. The letter explained that three allegations had been found proven, namely authorising and accepting payment for overtime which the Claimant had not worked, leaving work during the overtime periods and not returning, and that once made aware of the overpayments of wages, the Claimant did not seek to correct his records or return the payments he had received. 9.5. On 27 August 2025, the Claimant appealed the decision to dismiss him. That appeal has yet to be determined.[10]There was some confusion as to the alleged protected disclosures being relied upon by the Claimant, for which he says he was dismissed. In his Particulars of Claim, the Claimant said the following (at Paragraph 18, emphasis retained): The investigation was far from thorough because it did not extend to other employees who were doing similarly what the Claimant did and was dismissed for namely, the Claimant blew the whistle on 15 August 2025 when it was recorded in the dismissal letter albeit not fully; “You explained that you had been leaving early once your tasks were completed and that you thought this was common practice”[11]However, in his submissions, Mr Lennard confirmed that the only alleged protected disclosure being advanced by the Claimant was the following (per Paragraph 24 of the Particulars of Claim): On 1 July 2025, the Claimant made clear to Senior Management in an email that; “ … Just because I reported these matters to other management, I become a target on this site”. This was never investigated up to date of dismissal on 15 August 2025 and was not dealt with under the company’s grievance policy and clearly a breach of the implied terms of the contract.[12]Mr Lennard clarified that “these matters” was a reference to the allegations regarding the Claimant’s overtime and allegations he had made of being subjected to racism, discrimination and bullying. - 4 -[13]But for Mr Lennard’s clear indication of what the only protected disclosure advanced was, I noted that Paragraph 25 of the Particulars of Claim could also have been construed as an allegation of being dismissed for making an alleged protected disclosure, as follows: The Claimant wrote multiple of emails in June 2025 as regards unlawful deduction of his wages and threatening to “take it further” and on the heels of “taking it further” the Claimant was dismissed.[14]To be fair to the Claimant and in the circumstances, I have considered all three extracts from his Particulars of Claim as alleged protected disclosures for the purposes of this application.[15]Notwithstanding that, there are a number of reasons why, in my judgment, the Claimant failed to show that the test in section 129(1) of the ERA 1996 had been met: 15.1. On the documents provided, I could not say that there is a sufficient likelihood that the Claimant will show that any of the alleged protected disclosures meet the legal definition that either makes them disclosures, or makes them protected disclosures. There are currently material shortcomings in areas including whether they were disclosures of information (as oppose to opinions), what the information disclosed was, how it led the Claimant to reasonably believe that it showed applicable forms of wrongdoing had occurred, were occurring or were about to occur, and what led the Claimant to reasonably believe that he was making the disclosures in the public interest; and 15.2. I also could not say at this stage that there is sufficient likelihood that the Claimant will make his case on causation (that is, that he was dismissed for making protected disclosures), for the following reasons: 15.2.1. As advanced by Mr Anderson, there are issues with the chronology. The alleged discrepancies with the Claimant’s overtime arose in February 2025, which was when Mr Whiting spoke with the Claimant. By the time of the alleged protected disclosures, the Respondent’s case is that it had already discovered the offending conduct, decided to investigate and invited the Claimant to attend an investigation meeting. In other words, the disciplinary process had started before any of the alleged protected disclosures were made and so, at the very least, initiating the disciplinary process could not have been caused by the Claimant making protected disclosures; - 5 - 15.2.2. There was a consistency in the documentation pertaining to the disciplinary process, wherein the investigation, the disciplinary hearing and the disciplinary decision were all premised upon allegations regarding the Claimant’s overtime claims. Whilst the Claimant takes issue with aspects of the disciplinary process, that falls someway short, at this stage, of showing that it is sufficiently likely that he will be able to show that the overtime discrepancies and associated issues which, on the face of the invitations and disciplinary outcomes, were the reasons for his dismissal, were a sham, and that the real reason for his dismissal was the making of the alleged protected disclosures; and 15.2.3. The Claimant’s case on causation, at this stage, is not assisted by his own pleaded case, wherein at Paragraph 13 of his Particulars of Claim, he submits that “[T]he Claimant was not charged with theft or dishonesty, but the minutes demonstrates that dishonesty or theft was in the mind of the dismissing officer when neither of these allegations were put to the Claimant as a charge”, a submission with which Mr Pickering readily agrees (at Paragraph 29 of his witness statement), in that he believed the Claimant had been dishonest. Whatever the rights or wrongs of Mr Pickering’s belief as to the Claimant’s honesty, what it tends to point away from is that the Claimant was dismissed for making protected disclosures.[16]For all those reasons, I was unable to find that the test in section 129(1) of the ERA 1996 was made out. As such, the application for interim relief must be dismissed.
Conclusion
[17]For the avoidance of doubt, I confirm that my decision is based upon a summary assessment of the documents provided to me for the purposes of this application and applying the tests (as developed by case law) under section 129(1) of the ERA 1996.[18]That is a very different exercise to what will ultimately occur at trial, wherein the parties will have had the opportunity to adduce all the evidence they are relying upon, the Tribunal will have the benefit of hearing live witness testimony (which can be tested) and the legal tests will be those under Part IVA and section 103A of the ERA 1996, without the additional provisions of section 129 or the ‘likelihood of success’ test. Rather, the standard of proof will once more be the usual balance of probabilities, more likely than not, 51%. - 6 -[19]As such, the parties should not take my decision on this application for interim relief as any indictor of the merits in, or likely outcomes of, the claim and the response to that claim, as and when they reach trial. Approved by: