Mr L Fulcher v PUMPGYMS Ltd and NRG Ltd: 3201106/2025
JUDGMENT
The claimant’s application for interim relief fails and is dismissed.REASONS
[1]The Tribunal gave reasons at the preliminary hearing, and those reasons is provided below. The Tribunal determined that the Claimant had brought his application for interim relief within seven calendar days immediately following the date of the dismissal and accordingly pursuant to Section 128(2) of the Employment Rights Act 1996. The Claimant was dismissed on 4 December 2025. The application for interim relief was presented on 10 December 2025 the Tribunal therefore has jurisdiction to consider this interim relief application.[2]To apply for interim relief a Claimant must bring themselves within one of the relevant categories in section 128(1) Employment Rights Act 1996 by claiming that the reason, or if more than one reason, the principal reason for the dismissal is one of those set out i.e. making a protected disclosure (section 103A ERA 1996).[3]To obtain interim relief under section 129 ERA 1996, the applicant must persuade the Tribunal that it is “likely” that they will succeed at final hearing in proving that the reason or principal reason for their dismissal was the protected disclosures.[4]In Taplin v C Shippam Ltd [1978] ICR 1068, EAT, it was held that the Tribunal should ask themselves whether the applicant has established that they have a “pretty good” chance of succeeding in the final application to the Tribunal. Taplin makes clear that the standard of proof is higher than a reasonable prospect of success i.e. a higher standard of proof than at final hearing.[5]In Ministry of Justice v Sarfraz (UKEAT/0578/10/ZT) it was made clear that in a whistleblowing claim in order to make an order under sections 128 and 129, the Judge had to have decided that it was likely that the Tribunal at final hearing would find all of the elements i.e. that the Claimant had made a disclosure to his employer, that he believed that it tended to show one or more of the matters itemised in section 43B, that the belief was reasonable etc.[6]In Parsons v Airplus International Ltd (UKEAT/0023/16/JOJ) the EAT stated that on hearing an application under section 128, the Employment Judge is required to make a summary assessment on the basis of the material before them 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.[7]The Tribunal reminded itself that in order to succeed in the application for interim relief, the Claimant must show that he has a "pretty good" chance of succeeding in proving all the elements of his claim i.e. that he made a disclosure of information, that he had a reasonable belief that the disclosure was in the public interest and tended to show one of the six categories of failure as specified in the statute which were discussed at the hearing.[8]Further, the Claimant must show that he has a "pretty good" chance of succeeding in proving that the reason or principal reason for his dismissal was that he had made protected disclosures.[9]The First Respondent is NRG Gym Two Limited (formerly Pump Gyms Limited, “Pump Gyms”) and the Second Respondent is NRG Gym Limited (“NRG”). Both operated the Colchester site as national gym franchises. The Claimant treats the Respondents as jointly and severally liable for the acts of their managers, employees and their agent, TC Group (outsourced HR group). The respondent maintained that there had never been a TUPE transfer in respect of acquisition.[10]The Claimant also provided very helpful submissions to the Tribunal. His position was that he relied primarily on his formal written disclosure dated 25 November 2025.[11]That disclosure contained detailed information tending to show: a) breaches of legal obligations (including data protection, TUPE irregularities, and employment law compliance failure); b) risks to health and safety (including safeguarding concerns involving minors and lone working); c) potential improper alteration of HR records; d) concerns regarding union-related detriment and governance failures. The claimant believed the disclosure showed relevant wrongdoing and were made in the public interest. The claim brought relate to allegations of automatic unfair dismissal arising from protected disclosures (whistleblowing, s.103A ERA 1996), and trade union membership/activities (TULR(C)A 1992, including ss.146 and 152).[12]The Respondent acknowledged receipt of the 25 November grievance (during the disciplinary process and again on appeal). HR confirmed that the disciplinary process would continue concurrently – namely alongside the grievance, the Respondent acknowledged receipt of the 25 November grievance during the disciplinary process.[13]The Claimant also relied on earlier communications as protected disclosures between September and November 2025 raising the consultation, safeguarding and compliance concerns. Those earlier concerns he submitted provide context for the 25 November email and show that the written disclosure was the formal escalation of matters already being raised, not a new issue.[14]The Claimant had, by 20 November, he submits, escalated serious governance concerns to his union and expressly noted that internal whistleblowing might be required.[15]The Claimant further submits that it is likely to be found that he held a reasonable belief that the information disclosed tended to show relevant wrongdoing and that the disclosure was made in the public interest. The matters raised included safeguarding of minors, staff welfare, and regulatory compliance.[16]The Claimant was dismissed nine days (seven working days) after making a detailed written disclosure raising serious concerns about compliance and governance. That timing, the claimant submitted, was made more significant by the continuation of the disciplinary and grievance/protected disclosure concurrently. It formed, he submitted, part of an ongoing pattern of the Claimant raising concerns regarding consultation, safeguarding, and legal compliance. Although the grievance element was acknowledged, the Claimant submitted that no substantive investigation was undertaken and no pause was applied to the disciplinary process.[17]Further, the claimant submitted that procedural fairness was also a relevant consideration to this application. That the Tribunal should take into account the manner in which the disciplinary was conducted after the disclosure was made. On 2 December, for example, Ms Parmar remained in the hearing as company witness/support despite having been identified for recusal by the Claimant. The hearing proceeded, he submitted, under protest, and the same panel reconvened on 4 December.[18]The Tribunal noted that there is invitation to the disciplinary hearing within the bundle dated the 24 November 2025 which states: The purpose of the hearing will be to discuss your alleged gross misconduct, as detailed below: 1. You were aware that Arron had been arrested and was unable to attend work on Monday 10th and Tuesday 11th November, yet you informed the Head of Operations, that the employee’s absence was due to their car breaking down. 2. You failed to report the true reason for the employee’s absence to your senior manager or to HR in a timely and accurate manner. 3. You were made aware that the same employee attended work on 12th November 2025, smelling of alcohol and was found asleep in the staff room, but you did not take appropriate action or escalate this incident as required under company policy.[19]This letter also included and references evidence relating to those incidents in respect of WhatsApp messages and witness statements.[20]The respondent maintained that the disciplinary letters were clear in respect to the reasons for dismissal and it had nothing whatsoever to do with the protected disclosure. They stated that it is important to remember that the disclosures of the 25 November 2025 were raised the day before this disciplinary hearing was due to take place.[21]Further, the tribunal gave weight to the letter of invitation to the disciplinary hearing being sent prior to this being received. Further, that the claimant was suspended at the relevant time of the disclosure being made and therefore his motivations for making the disclosure should be scrutinised and will be scrutinised by the tribunal in due course at the final hearing. Further, there was dispute in resect of the claim in respect of trade union related activities.[22]The Respondent further explained that the disciplinary process was paused and the grievance was reviewed. The disciplinary hearing was held on the 2nd of December and then reconvened again on the 4th of December.[23]The EAT in Al Qasimi v Robinson (UKEAT/0283/17) emphasised that the test of likelihood is ‘a relatively high bar for a claimant’ (paras.9-10). In Wollenberg v Global Gaming Ventures (Leeds) Ltd (UKEAT/0053/18) a differently constituted EAT observed: The question is whether the claim under section 103A is likely to succeed. This does not simply mean more likely than not. It connotes a significantly higher degree of likelihood. The Tribunal should ask itself whether the Applicant has established that he has a pretty good chance of succeeding in the final application to the Tribunal. The Claimant is therefore only entitled to interim relief if they can persuade the Tribunal that they have significantly better than even chance of succeeding with all of the ingredients necessary to win a claim under s.103A ERA.[24]To summarise the various authorities, the burden is on the claimant. The Tribunal’s task at this hearing is necessarily a cursory exercise. No oral evidence was heard. The Tribunal is conducting an expeditious summary assessment doing the best it can with untested evidence. Interim relief is not something which should be granted lightly.[25]In light of those comments, the claimant has to establish that his case is nearer to certainty, rather than a mere possibility. That he has a higher degree of certainty than reasonable prospects of success; he has to demonstrate a pretty good chance of success or of succeeding. At a final hearing, the claimant only has to prove his case on the balance of probabilities or establish 51% prospect of succeeding. This application involves a much higher degree of certainty. The claimant’s case it that his dismissal was due to the protected disclosures he made.[26]I have considered the submissions provided by both the Claimant and the Respondent. On an analysis of the extensive correspondence that was sent by the Claimant, I consider that it is not persuasive whether there is information that has been provided in the public interest or motivated by the disciplinary process that is ongoing at the relevant time. I do not consider that the Claimant has passed the threshold with the cogency and clarity that is required for an interim relief application.[27]I am not persuaded that the Claimant has shown that he has a pretty good chance of succeeding in proving that he made protected disclosures and that he was dismissed for making them. The Respondent raises relevant allegations and facts and circumstances, and the evidence will need to be tested at the final hearing.[28]The Tribunal cannot say, at this stage that the prospects of any of these issues is nearer to certainty, rather than a mere possibility. In short, the claimant would need to provide further clarity of the disclosures he relies upon.[29]This is an assessment or overview at an early stage in the proceedings where the Tribunal does not even have the benefit of the respondent’s response to the allegations which are the subject of the interim relief application. What has been conducted is a summary assessment based upon a limited amount of time and limited documents. Full disclosure has not taken place.[30]Following this summary assessment, with a higher burden of proof, it does not necessarily follow that the claimant will be unsuccessful when relevant evidence will be produced, heard and tested at a final hearing; which is the opposite of this expeditious summary assessment.