Miss S Messi v Nomad Foods Europe Ltd: 6001465/2025
EMPLOYMENT TRIBUNALS
Case No 6001465/2025
Between
Miss S MessiClaimantNomad Foods Europe LtdRespondent
Before
Employment Judge M WarrenIn person for claimantDate 1 August 2025
REASONS
[1]Miss Messi worked for the Respondent between 26 October 2024 and 14 January 2025. There is no Early Conciliation Certificate. She issued the proceedings on 15 January 2025, bringing claims of race discrimination, disability discrimination, sex discrimination, detriment for making protected disclosures, breach of contract, holiday pay and most notably for today’s purposes, a complaint that she was automatically unfairly dismissed for having made a protected disclosure, (whistle blowing).[2]Miss Messi had been employed as an Accounts Payable Administrator. Her ET1 Claim Form contained an application for Interim Relief in respect of her complaint of automatic unfair dismissal for having made a protected disclosure.[3]On 31 January 2025, the Regional Employment Judge rejected all of Miss Messi’s claims because of the absence of an Early Conciliation Certificate, except for her complaint of automatic unfair dismissal and application for Case Number: 6001465/2025. 2 Interim Relief , in respect of which an Early Conciliation Certificate is not required. The Notice of Hearing for today was sent out to the parties on 31 January 2025. Application for Postponement[4]Miss Messi made a postponement application on 21 February 2025. It was referred to Employment Judge George on 25 February 2025, who refused the postponement request. Employment Judge George also made orders for Miss Messi to provide further and better particulars of her whistle blowing claim. Miss Messi’s response to that order is dated 3 March 2025.[5]On a number of occasions since 25 February 2025, Miss Messi has renewed her application for a postponement, each time on the same grounds upon which Employment Judge George had rejected the initial application. Those were referred to me yesterday. I refused the postponement applications because they were on the same grounds as those previously made and there had been no material change in circumstances. Evidence Before Me Today[6]The documents I had before me included the following: 6.1. Miss Messi’s email to the Tribunal of 7 March 2025 with seven documents attached; 6.2. Miss Messi’s email of 13 March 2025 with twelve documents attached, that email included a recording of a telephone conversation which I listened to during the course of this hearing; 6.3. An email sent to the Tribunal this morning at 11:24 with an Employment Appeal Tribunal attached, (Dr MaClennan v The British Psychological Society & Others [2024] EAT 166) ; and 6.4. An email sent to the Tribunal this morning at 10:27 with attached submissions to which she spoke during the hearing.[7]Miss Messi confirmed to me there were no further documents that I should have before me.[8]The Respondent produced a Bundle. Mr Chadwick provided written submissions. Miss Messi had those also. Today’s Hearing and Miss Messi’s Application for Interim Relief[9]As to the hearing itself, Miss Messi referred in a number of places in the documents, but in particular in an email to the Tribunal of 26 February 2025, to suffering from Depressive Disorder, Anxiety, Panic Attacks, Lumbago and Sciatica. Case Number: 6001465/2025. 3[10]As an adjustment previously, it had been confirmed to Miss Messi that she could attend this hearing, which is by Cloud Video Platform (CVP), by telephone. She was able to do that and it worked perfectly well. Miss Messi confirmed to me there were no other adjustments that she required in order to participate effectively in this hearing.[11]I heard oral submissions from Miss Messi; she spoke to the notes which she had emailed during the course of the early part of the hearing.[12]I adjourned at one point to listen to the recording of the telephone conversation between Miss Messi and somebody called Sophie Lennon of the employment agency Alexander Lloyd on 7 January 2025 and read the email of 12 November 2023 Miss Messi referred to.[13]Mr Chadwick relied upon his written submissions. He supplemented those with brief comments on the November 2024 documents Miss Messi had forwarded during the hearing.
The Law
[14]The right to apply for Interim Relief is set out at Section 128(1) of the Employment Rights Act 1996 (“ERA”). In short, an order for Interim Relief is an order that an employer re-instate the dismissed employee pending the outcome of the claim for unfair dismissal, or continue to remunerate the employee in accordance with their contract of employment pending the outcome of their claim. It is a right that is open to employees, not workers.[15]Section 129(1) ERA 1996 sets out that the test for determining an Interim Relief application is whether the claim is likely to succeed.[16]Amongst the types of cases that have the benefit of this jurisdiction are those of automatic unfair dismissal for protected disclosures under s.103A of the ERA 1996; a case such as this.[17]The key for an Interim Relief determination is what the word “likely” means. In the case of Taplin v Shippam Limited [1978] IRLR 450, that expression was said to mean, “a pretty good chance of success”.[18]Some years later in the case of Dandpat v University of Bath [2009] UK EAT0408, Mr Justice Underhill as he then was had been invited to re-visit the statement in Taplin of the test of what, “likely” meant and he declined to do so saying that, “…there are good reasons of Policy for setting the test comparatively high.”[19]In London City Airport v Chacko [2013] IRLR 610, the Employment Appeal Tribunal explained that on an application for Interim Relief, the Employment Judge hearing it has to carry out an expeditious summary assessment on how the case appears on the material available, doing the best that one can on untested evidence advanced by each side. Case Number: 6001465/2025. 4[20]Her Honour Judge Eady in Al-Qasimi v Robinson said: ‘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[21]Lastly, I will make reference to the case of Ministry of Justice v Sarfraz [2011] UK EAT0578; on an Interim Relief application in a whistle blowing case, for the Claimant to succeed the tribunal must find that she is likely to succeed on each element of such a claim. It was re-iterated that, “likely” does not simply mean more likely than not, it is not simply an, “at least 51% chance of success” test, it connotes as we know from Taplin, a significantly higher degree of likelihood.[22]The key elements of a whistle blowing case, the elements on which Miss Messi must satisfy me that she is likely to succeed on, are that it is likely to be found that: 22.1. Firstly, she made a disclosure of information; 22.2. Secondly, that such disclosure tended to show one of the things set out at s.43B(a)-(f) ERA 1996; 22.3. Thirdly, that she had a reasonable belief that the disclosure was in the public interest; and 22.4. Fourthly, that the disclosures were the reason, or the principle reason, for her dismissal.
Discussion
[23]These are not findings of fact binding on any future tribunal, I have not heard evidence.[24]Miss Messi was placed with the Respondent by an employment agency. The relevant contractual documents are in the Bundle at page 44 and 151. It was a Fixed Term Contract due to terminate on 15 January 2025.[25]Miss Messi provided further and better particulars of her claim by writing to the Tribunal and the Respondent to state what the protected disclosures were that she relied upon. In that document, she referred to disclosures Case Number: 6001465/2025. 5 made on 7, 10, 13 and 14 January 2025. I will focus on the disclosure of 7 January 2025 for reasons that will become apparent.[26]The email of 7 January 2025 is at page 81 of the Bundle. Miss Messi confirmed to me that is the email she relies upon as her first protected disclosure. It is timed at 7:16pm, (or 19:16). Miss Messi confirmed to me that she was notified of her dismissal, that her contract would not be renewed, on 7 January 2025 at 15:04, page 62 of the Bundle. The email reads, “I am afraid the contract at Nomad Foods is still unfortunately finishing at 15 January. However, if you could kindly send over an updated CV to me I can keep you in mind for anything else suitable that arises.”[27]It follows that the protected disclosure relied upon comes after the decision and notification of dismissal. The protected disclosure cannot therefore have been the reason for dismissal.[28]I note emails dated 12 December 2024 in the Bundle at pages 53 and 54, which show correspondence between members of the Respondent’s management, recording a decision that of eight people supplied by the agency, including Miss Messi, the contracts of five were to be renewed and three, (including Miss Messi) were not. Therefore, the decision actually appears to have been made as early as December 2024. Miss Messi says that is all terribly unfair and she may be right, but for today’s purposes, the issue is whether the disclosure of 7 January 2025 was likely to have been the reason for dismissal. It can’t have been.[29]Faced with this, when she was making her submissions and answering some questions I posed to her, Miss Messi made reference for the first time to having made a disclosure on 12 November 2024. She said that the telephone recording of the conversation with Ms Lennon on 7 January 2025, a conversation that took place after Miss Messi had been notified of her dismissal, would corroborate that she had made a disclosure on 12 November 2024. It is a sixteen minute recording, I listened to it and it makes no such reference.[30]Miss Messi forwarded to me via my clerk, an email of 12 November 2024 which she purported to rely upon as amounting to a protected disclosure. That email to the Respondent reads as follows, “As discussed I want to ask if I can WFH [work from home] to end of the month – beginning of December as reasonable adjustment due to my sciatica flaring up recently and medication I have been prescribed also. I have an appointment for an injection and requesting Monday 18.11.24. I will also try coming in once a week. I have consulted with my GP who advised me to ask also. Please keep this confidential also.”[31]With the greatest respect to Miss Messi, that is not a protected disclosure. It is a request for an adjustment. Case Number: 6001465/2025. 6
Conclusions
[32]Without even considering the employment status of Miss Messi, (although I have to say on the documents it rather looks as if she was a worker not an employee) not only can I say that it is not likely that she will succeed in her automatic unfair dismissal claim for having made protected disclosures, it is very likely that she will fail.[33]For this reason the application for Interim Relief fails. Applications for Costs and / or Strike Out[34]Mr Chadwick seeks the Respondent’s costs for today.[35]The application for Interim Relief had no reasonable prospects of success. That is plain. The threshold for an order for costs as set out at Rule 74(2) has been met.[36]On the authorities, when one is dealing with a litigant in person, Tribunals are encouraged, (and I will accede to that encouragement) to postpone dealing with an application for costs until that person has had an opportunity of presenting evidence as to their means, because the prospective payer has the right to have their means taken into account at both stages: 36.1. Firstly, whether or not to make a Costs Order at all; and 36.2. Secondly, if a Costs Order is to be made, as to how much those costs should be.[37]I am not going to award costs today, but I have recorded that the application for Interim Relief had no reasonable prospects of success.[38]Miss Messi has made an application for the Response in these proceedings to be struck out on the grounds that they have no reasonable prospects of succeeding. That application in itself has no reasonable prospects of success and I warn Miss Messi as to that.[39]The Respondent makes an application for the claim as a whole to be struck out on the grounds that it has no reasonable prospects of success. That is not an application I am at liberty to deal with today, because today was to deal with an Interim Relief application.[40]The way that I am going to resolve these matters is that I will list this case for a Public Preliminary Hearing, with a time estimate of one day, to deal with, 40.1. Firstly, the Respondent’s application for costs; Case Number: 6001465/2025. 7 40.2. Secondly, Miss Messi’s application for the Response to be struck out; and 40.3. Thirdly, the Respondent’s application for the claim to be struck out. Further Public Preliminary Hearing[41]In the presence of the parties, I arranged with the Listing Team for this case to be listed for a further Public Preliminary Hearing, by CVP (at the Claimant’s request) with a time estimate of one day before a Judge sitting alone, on 30 June 2025.[42]This date was convenient to both Miss Messi and Mr Chadwick. Miss Messi was concerned that her representative, who she would wish to have with her next time, might not be free. I explained that if her representative was not able to attend on that occasion, the representative should write to the Tribunal to confirm that they have been appointed representative, (none is recorded on the file at the moment) and if they are unable to attend on 30 May 2025, to give an explanation.[43]No later than 72 hours before the Preliminary Hearing Miss Messi must send to the Tribunal and to the Respondent, evidence of her financial circumstances, including her income, her outgoings, her capital assets and her liabilities. If she does not provide adequate comprehensive evidence, the Tribunal is likely to assume that her means are no obstacle to her being able to pay any costs that may be ordered.[44]Miss Messi may attend the hearing by telephone initially. However, it may be that if she is required to give evidence as to her means, the Employment Judge may require her to attend by video link. Approved by: