Mr M C Jara and A Rodriguez v Trustportal Solutions Ltd and Others: 3305150/2025 and 3305151/2025
JUDGMENT
The claimants’ application for Interim Relief fails.REASONS
[1]The claimants were employed by the first respondent, an information technology firm from 1 July 2021. They were given notice of dismissal for the alleged reason of redundancy on 14 August 2025. At the time of this hearing they were still employed by the first respondent. Their date of termination is to be 14 November 2025.[2]The application before me was the claimants’ application dated 20 August 2025 for interim relief. I gave my decision and reasons at the hearing. This statement of reasons is produced because it was requested by the claimants at the hearing.[3]The application for interim relief was submitted at the same time as the ET1 together with the Particulars of Claim. It was listed to be heard by a Notice of Hearing dated 15 September 2025. On 18 September 2025 the respondents applied for a stay of proceedings to engage in ACAS conciliation. On 13 October 2025 the respondents sent a letter to the claimants warning of a possible costs application on the grounds that the tribunal had no jurisdiction to decide the interim relief application today. On 14 October 2025 the claimants applied to strike out the response.[4]I conducted the hearing as a private hearing. It had been listed as a public hearing but no members of the public attempted to join the hearing. I informed the parties that the hearing would proceed in private. However I have since decided that the decision is a Judgment and not an Order and therefore a public hearing would have been appropriate. Conducting the hearing as a private hearing made no difference because no-one was excluded from the hearing.[5]There was not time today to deal with the applications made since the listing of the application for interim relief. I informed the parties that the next stage should be case management. It is unlikely to be appropriate to stay a claim for ACAS negotiation. The parties can continue to use the services of ACAS while the proceedings are ongoing. I also suggest that the parties consider judicial mediation. That can be discussed at the case management hearing which is usually listed once the ET3 is received and accepted by the tribunal.[6]The respondents say that they submitted the ET3 forms online. They were not before me today and do not appear to have been processed by the tribunal yet.[7]I discussed the claimants’ application to strike out. They explained that it was made in response to the respondents’ statement (4 pages) and a short bundle (23 pages) which had been sent to them less than 3 working days before the hearing in breach of a direction by the tribunal that they should be sent at least 3 days before.[8]Although the claimants’ application appears to be worded to strike out the whole response that is of course premature as the response (the ET3) has not been processed or accepted. However, it was apparent from their explanation that they were also asserting that they had not had reasonable time before the hearing to consider and take legal advice on the respondents' documents, draft witness statement and written submissions. We addressed that by counsel for the respondents making submissions on day 1 and the claimants making their submissions at the beginning of day 2, having had the benefit of hearing the respondents' submissions and extra time overnight to consider the documents.[9]I had the following documents before me in relation to the claimants’ interim relief application: Application for interim relief dated 20 August 2025 Chronology prepared by the claimants Claimants’ skeleton argument Claimants’ written closing submissions Claimants’ joint witness statement (JWS) dated 9 October 2025 including an evidence bundle (238 pages) Claimants’ list of authorities Michelle Sims witness statement prepared on behalf of the respondents including a bundle of evidence (23 pages) Counsel for the Respondents’ skeleton argument[10]I did not hear any oral evidence. Therefore although I have seen the witness statements and documents the parties wish to rely on for this application they have not been tested in evidence. I rely on their respective stated cases to ascertain the chances of success in respect of issues in dispute. Necessarily, that requires me to take their positions at face value and where evidence conflicts I need to determine whether that should reasonably be tested before reliance is placed on it.[11]As I have not heard evidence the matters set out in the paragraphs below do not represent my findings of fact but are a summary of the parties’ submissions.[12]In summary, to the extent relevant to this application, the claimants rely on an alleged Public Interest Disclosure (PID) that they say they made on 8 August 2025. They say the contents of the PID refer to tax fraud, financial impropriety and unlawful employment practices and that it was a disclosure of information qualifying for protection under s. 43 Employment Rights Act 1996.[13]They say that as a result of the PID they were given notice of dismissal for the purported reason of redundancy on 14 August 2025.[14]The claimants’ case is that it was a ‘sham’ redundancy. They concede that redundancy was referred to at a meeting that took place before the PID on 4 August 2025 but they but say that the threat of redundancy was at that time being used for leverage to try and get them to agree to a secondment. They say they were told they would be made redundant if they refused a secondment. They say that they did not refuse a secondment but asked for further information which was not forthcoming. They say that there was a shift in position by the respondents after the PID and from that date onwards the reason of redundancy was being falsely used to remove them (JWS/68).[15]The claimants maintain that there was not a redundancy situation. They say they were told the first respondent could not afford to lose them (JWS/ 6) and they say evidence exists which shows there was still work for them to do.[16]They assert that the decision to dismiss them was made first and then the respondents created redundancy documents on 10 and 13 August 2025 to attempt to make it look like a genuine redundancy. Redundancy consultation meetings took place on 11 August and 13 August 2025 and the claimants say they were told they were being made redundant on 14 August 2025 without a right of appeal. The say that the timing and the haste to dismiss them show that the redundancy was a sham.[17]The respondents say, in a draft statement by Michelle Sims, that the first respondent was in serious financial difficulty from April 2025. Their case is that there was an urgent cost reduction planning meeting on 29 July 2025 and a selection matrix was created between 29 July 2025 and 1 August 2025. They rely on a teams meeting note of the meeting on 29 July 2025. The claimants say that there is nothing to anchor that to a date and assert that all documentation relating to redundancy was created retrospectively. Law[18]Section 129 (1) ERA (Employment Rights Act) 1996 sets out, so far as is relevant to this application, the test for the tribunal when considering an application under s.128 ERA 1996 (emphasis added): ‘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 100(1)(a) and (b), 101A(1)(d), 102(1), 103 or 103A, or …..’[19]An application under s. 128 ERA 1996 requires the tribunal to consider whether it is likely that the tribunal will find that the automatically unfair reason for dismissal is established. The task of the tribunal is to carry out an expeditious summary assessment on the material available to it, doing the best it can with untested evidence.[20]The burden of proof in an interim relief application is intended to be greater than that at the full hearing where the tribunal need only be satisfied on the balance of probabilities. The test is not ‘more likely than not’ but something nearer to certainty than mere probability.[21]In cases where the tribunal is faced with a conflicting account of key facts and issues it may conclude that the conflict cannot be resolved at an interim relief hearing. In Parsons v Airplus International Limited EAT 0023/16, an Employment Judge refused the claimant’s interim relief application noting that, while some of the disclosures were likely to be found to be protected disclosures, resolution on whether these formed the reason for dismissal was less clear cut. The EAT agreed with that approach on appeal (Parsons v Airplus International Limited UKEAT/0023/16/JOJ).[22]The claimants rely on the principal reason for dismissal being that specified in s.103A ERA 1996: ‘An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee made a protected disclosure.’[23]A claimant bringing a claim under s.103A ERA 1996 needs to show that the disclosures they allege qualify for protection under the Act. The definition of a qualifying disclosure is set out in s.43B of the ERA 1996: ‘(1) In this Part a “qualifying disclosure” means any disclosure of information which, in the reasonable belief of the worker making the disclosure, is made in the public interest and tends to show one or more of the following— (a)that a criminal offence has been committed, is being committed or is likely to be committed, (b)that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject, (c)that a miscarriage of justice has occurred, is occurring or is likely to occur, (d)that the health or safety of any individual has been, is being or is likely to be endangered, (e)that the environment has been, is being or is likely to be damaged, or (f)that information tending to show any matter falling within any one of the preceding paragraphs has been, is being or is likely to be deliberately concealed.’[24]A tribunal must address whether one or more of the elements set out at s. 43B (1) (a) to (f) are present. If they constitute qualifying disclosures did the claimant make the disclosures in the reasonable belief that they were in the public interest? Even if that is found by the tribunal to be the case were the disclosures the sole or principal reason for the claimant’s dismissal?[25]The case of Taplin v Shipman [1979] IRLR 450 provides that the claimant needs to show that he has ‘a pretty good chance’ of succeeding in proving that the sole, or principal, reason for his dismissal was that he had made one or more protected disclosures. The Employment Appeal Tribunal (EAT) stated that the bar is higher than ‘a real possibility’ or ‘reasonable prospect’ or ‘51 per cent or better chance of success’.[26]The definition of redundancy is set out in s.139 (1) (b) ERA 1996 and includes the diminishing need for employees to do the available work.[27]Section 105 ERA 1996 provides for cases where a redundancy situation existed but the employee asserts that they have been been unfairly selected. Submissions[28]I received very detailed written and oral submissions from both parties. The parties have used this hearing as an opportunity to rehearse their arguments, but the level of detail indicates that the issues cannot be fairly resolved in a hearing of an application for interim relief. The extent of the submissions on whether there was a disclosure of information alone indicates that both parties have an arguable case that is better resolved at a final hearing.[29]In addition, both parties invited me to draw inferences from facts on which I had not heard evidence, for example, whether there was a redundancy situation, what the real motivation of individuals was, or to decide that documentation had been fabricated.[30]Counsel for the respondents submitted that the tribunal has no jurisdiction relying on the Northern Ireland Court of Appeal decision in McConnell and anor v Bombardier Aerospace / Short Brothers (No. 2) 2009 IRLR 201, NICA and submitting that the claimants had inadvertently brought a s. 105 ERA claim as a 139 ERA 1996 claim.[31]In the alternative she argued that the claimants had not met the threshold for an interim relief application.[32]The claimants argued that the timing and manner of the alleged redundancy in itself demonstrated a clear case of dismissal for the primary reason of the PID they say made on 8 August 2025.Conclusion
[33]I will first address the argument that the tribunal does not have jurisdiction because this claim should have been brought as a s.105 ERA 1996 claim. Bombadier was a case with a long procedural history where there were large scale redundancies. The appellants were represented by counsel and there was an agreed statement of facts which conceded that there was a redundancy situation. The claim was clearly pleaded in terms of unfair selection. The tribunal therefore felt able to find as a fact that there was a redundancy situation and ruled out the possibility that this was a situation where redundancy had been created for the purpose of bringing about a dismissal.[34]That is not the case here. The claimants do not plead their case in terms of s. 105 ERA 1996. They did not tick the box on the ET1 claiming a redundancy payment. They strongly contest that there was a redundancy situation; indeed their case is based on the allegation that the respondents fabricated a redundancy situation in order to dismiss them. The say there was still work for them to do. I do not accept counsel for the respondents’ submission that the claimants have conceded that there was a redundancy situation because they asserted a statutory right to a redundancy payment in a communication before the date of the alleged PID.[35]It will be for the respondents to show the reason for dismissal. The respondent relies on documents that they say demonstrate that the first respondent was in financial difficulties and that redundancies were being considered before the alleged PID. That evidence has not been tested. I am unable to make a finding on whether there was a redundancy situation.[36]Therefore the appropriate test today is whether the claimants have a pretty good chance of succeeding in a s.103A claim. The burden of proof is on the claimants to show that is the case.[37]In considering whether they have a pretty good chance I will focus on causation. The claimants have to satisfy all the components of s.43B, but if they fail to establish that they have a pretty good chance of establishing that the primary reason for dismissal was the PID that is enough for the application for interim relief to fail.[38]The claimants rely on the short time after the PID was made and the notification of dismissal for redundancy. They rely on what they describe as an inadequate process, documents they say were created only after the PID, and what they overheard about the treatment of another employee. They invite me to make an inference not only that the redundancy was a sham but that the primary reason for their dismissal was the PID. Although the timings demonstrate a possible link that needs to be set against the respondents’ case that there was a genuine redundancy situation and they tried to save the claimants jobs by offering a secondment. These cases both need to be tested in evidence.[39]Accordingly I cannot find that there is a pretty good chance that the claimants will succeed in showing that the dismissal was because of the PID and the claimants’ application for interim relief fails. Approved by: Employment Judge S. Matthews 28 October 2025 13 November 2025 For the Tribunal: …………………………………… Recording and Transcription Please note that if a Tribunal hearing has been recorded you may request a transcript of the recording, for which a charge may be payable. If a transcript is produced it will not include any oral judgment or reasons given at the hearing. The transcript will not be checked, approved or verified by a judge. There is more information in the joint Presidential Practice Direction on the Recording and Transcription of Hearings, and accompanying Guidance, which can be found here: https://www.judiciary.uk/guidance-and-resources/employment-rules-and-legislation-practice-directions/