Mr A Howarth v Bristow Helicopters Ltd: 4105605/2024

EMPLOYMENT TRIBUNALS (SCOTLAND)

Case No 4105605/2024

Venue Aberdeen

Hearing 12 July 2024

Between

Mr Alexander HowarthClaimant

Bristow Helicopters LtdRespondent

Before

Employment Judge N M Hosie

Date 12 July 2024

JUDGMENT

The Judgment of the Tribunal, for the reasons given orally at the Hearing, is that the application for Interim Relief is refused.

REASONS

[1]The claimant, Alexander Howarth, made an application for Interim Relief which was opposed by the respondent This was a Hearing to consider his E.T. Z4 (WR) application. Unfortunately, Mr Howarth was unable to attend the Hearing due to ill-health. He relied upon the terms of his claim form and written submissions which he had made. I also had before me a bundle of documents and written submissions from the respondent’s solicitor.

[2]After an adjournment to consider the papers, I reconvened the Hearing and gave an oral Judgment. The following sets out what I said, mainly for the benefit of the claimant who was not in attendance. io 3. I have considered both parties’ written submissions, for which I am grateful, and I have been able to reach a decision on the claimant’s application for Interim Relief.

[4]In considering an application for Interim Relief, a Tribunal has to have regard to the terms of sections 128 to 132 of the Employment Rights Act 1996 (“the 1996 Act”).

[5]For a Tribunal to grant such an application, it must appear to the Tribunal that the Tribunal hearing the case is likely to determine that the claim will succeed. This has been interpreted in the case law and in such cases as Taplin v. C Shippam Ltd

[1978] IRLR 450

, as requiring the Tribunal to be of the view that when the case proceeds to a Hearing there is, “a pretty good chance of success” for the ciaim. In Ministry of Justice v. Sarfraz

[2011] IRLR 562

, Mr Justice Underhill, then 25 6. President of the EAT, opined that the message to be taken from Taplin was clear - namely that “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”. So, it is a high bar.

[7]I did not hear any oral evidence from witnesses. That is not uncommon in Hearings of this nature.

[8]Helpfully, I had the claimant’s claim form and his “Notes” in response to the respondent’s documents.

[9]I had the respondent’s solicitor’s written submissions and his bundle of documents, which contained witness statements from Sophie Smith, Emma Lawson and Graham Hamilton.

[10]I am required to undertake a broad assessment based on the papers available and the submissions made. I am not required to make any findings in fact.

[11]What then of the present case?

[12]The claimant did not have the required two years’ continuous service to bring a “standard” unfair dismissal claim. His claim is one of automatic unfair dismissal, by reason of making a protected disclosure, in terms of S.103A of the 1996 Act.

[13]He says that he made a protected disclosure to Emma Lawson, HR Director, on 20 March 2024 when he complained of “ongoing bullying”. That complaint was made anonymously at first. He says that he identified himself as the complainant on 5 June 2024.

[14]In my view, there is a preliminary issue as to whether this alleged “disclosure” 25 qualifies for protection under s.43B of the 1996 Act. The onus is on the claimant to establish that it was.

[15]The respondent has a stateable argument that it does not fall within paras, a) to f) in the section; that it was not made in the public interest, but rather was just a private employment dispute; and the claimant will also have to establish that he had a reasonable belief.

[16]Further, even if the claimant gets over the hurdle of establishing that he made a protected disclosure, he will still have to show that that was the reason for his dismissal.

[17]The fact that he was dismissed at a probationary review meeting is a relevant factor in that his performance during his probationary period was due routinely to be assessed, in any event.

[18]On the basis of the respondent’s witness statements, evidence will be led that his performance during the probationary period was not satisfactory, that he had not reached the required standard and that was the reason for his dismissal. That is a material dispute in the case.

[19]Further, according to his statement, Mr Hamilton who took the decision to dismiss the claimant, was unaware of the complaint (the “disclosure” relied upon) the claimant allegedly made to Emma Lawson and nor was Sophie Smith.

[20]It is clear, therefore, that the respondent also has a stateable defence in this regard. This can only be properly determined by hearing evidence at a full Hearing. This is not a case where there appears to be a “smoking gun” or no other explanation for dismissal.

[21]Looking at the material before me, therefore, I am not satisfied that the statutory test has been met. The application, therefore, is refused.

[22]The merits of the claim and the respondent’s response, when submitted, fail to be tested in the normal fashion.

[23]The case should proceed as scheduled, therefore, to the Preliminary Hearing, on 30 August, I understand, for case management purposes. I shall refer the file to the administration staff on that basis.