Mr M Withey v Entserv UK Ltd: 6001621/2025
JUDGMENT
ON INTERIM RELIEF The application for interim relief is refused.REASONS
[1]The claim arises out of events during, and the circumstances of the termination of, the contract of service between the claimant and, as he now accepts, Entserv UK Limited. Originally the claim was presented against two respondents; the first respondent’s name being DXC UK International Ltd. Mr Withey now accepts that all claims presented should proceed against his employer, namely Entserv UK Limited. He has withdrawn the claim against the other respondent which will be dismissed under Rule 51 in due course.[2]The claimant’s employment appears to have started on 20 September 2021, but he entered into an apprenticeship agreement with the respondent on 29 January 2022 and it is the circumstances of termination of that apprenticeship that give rise to his application for interim relief.[3]Since there are in fact other claims within the claim form beyond that of alleged automatic unfair dismissal, he underwent early conciliation as against the remaining respondent, that was between 15 and 16 January 2025, and the claim form was presented on 16 January. It contained an application for interim relief which was rightly accepted as having been made within seven days of the effective date of termination which was 10 January 2025.[4]The respondent has entered their grounds of response and I have had available to me for today’s hearing an electronic hearing file running to 198 pages. Page numbers in these reasons refer to that file. I have a witness statement signed by the claimant and also a witness statement from Veselin Dzholev, on behalf of the respondent, who was the claimant’s line manager.[5]As is stipulated when hearing applications of this kind, I have not heard oral evidence and there has not been cross examination about the evidence that is going to be relied on at a final hearing.[6]I have been assisted greatly by the focused and helpful submission of both counsel and by their respective skeleton arguments. If I do not refer to all of the points they raise but that does not mean that I have not taken them into account. The law applicable to this interim relief application[7]There is common ground between the parties as to the applicable law in such cases and, indeed, as to the applicable law for the underlying complaint of automatic unfair dismissal for the reason or principle reason of protected disclosure contrary to s.103A Employment Rights Act 1996 (hereafter referred to as the ERA). The determinative issue is the application of the law to the facts of the present case as they appear on an expeditious summary assessment.[8]This application for interim relief is made under s.128 ERA following the procedure and applying the test in s.129 ERA, namely whether it is: “…likely that on determining the complaint….the Tribunal will find that the reason or if more than one the principal reason) for the dismissal is one specified in …Section 103A”.[9]When considering that test I am particularly assisted by the case of Taplin v C Shippam Ltd [1978] I.C.R. 1068, EAT and the well-known quote referred to in both skeleton arguments that “The industrial tribunal [as it was at the time of the case] should ask themselves whether the applicant has established that he has a “pretty good” chance of succeeding in the final application to the tribunal.[10]The statutory test remains whether it is “likely” that the claimant would succeed. That was restated and clarified in Ministry of Justice v Sarfas [2011] I.R.L.R. 562 EAR where Underhill P, as he then was, said “In this context ‘likely’ does not mean simply ‘more likely than not’ - that is at least 51 per cent - but connotes a significantly higher degree of likelihood.” He also described that as being “something nearer to certainty than near probability”.[11]Other ways of describing it have been “as a pretty good chance” but there is always a risk when recasting the words that one loses sight of the statutory test which is simply whether it is likely.[12]In Al Qasimi v Robinson EAT 0283/17 the EAT had to consider the correct application in a whistleblowing claim. I have taken into account the approach suggested by Her Honour Judge Eady, QC as she was then. I bear in mind that I am looking at this expeditiously on a summary basis on the basis of the material that is available to me. That is of necessity brought together at short notice. I remind myself of her advice that I need to be careful to avoid making findings that might tie the hands of the employment tribunal ultimately charged with the final determination of the merits of the points raised. I need to explain the conclusion that I have reached sufficiently well to let the parties know why the application has, as it has in this case, failed.[13]The question about whether the claimant is “likely” to succeed applies to each element of the claim of automatic dismissal on grounds of protected disclosure. Discussion and conclusion[14]It is not necessary for me to address absolutely every point that was raised, not least because I need to avoid saying more than is necessary lest it tie the hands of the employment tribunal or judge at a final hearing. I focus instead on the reasons why the application has failed. Therefore, although the respondent’s counsel has set out in paragraph 15 of his skeleton argument the seven specific elements of a claim of automatic unfair dismissal on grounds of protected disclosure, I am going to focus on three matters that were, it is fair to say, the subject of the most debate in the hearing before me.[15]There are certainly two of those where I am not satisfied on what is before me that the claimant is “likely” to succeed in showing what it is necessary to show in order to succeed in the automatic unfair dismissal claim. I do not need, in those circumstances, to go on to consider whether or not he is “likely” to succeed in all of the other elements.[16]First of all I set out the information which is said to have been disclosed. The focus of argument was on whether the information relied on by the claimant amounted to a protected disclosure within s.43B(1)(b) – breach of a legal obligation or s.43B(1)(c) – health & safety endangerment. The way in which the argument was explained in this hearing clarifies the claimant’s argument about how the information tended to show the relevant wrongdoing.[17]The communication relied on is a written communication dated 4 November 2024 (page 108). It was sent by email from the claimant to Mr Dzholev.[18]On the first page, page 108, Mr Withey set out five sub-headings. Under the first of these, “Further falsification of information within formal documentation”, my attention was drawn in particular to a passage where the claimant describes a call. The claimant was at the time an apprentice working for the respondent where the educational part of the apprenticeship was provided by the Open University. He referred in his email to a call (or online meeting) created by senior members of the Open University on 24 October 2024 where: “My degree, my chartered management qualification, and what is required of my line manager to meet the contractual requirements of both were explained in great detail to Veselin Dzholev. This call was created to address concerns from the open university of training and support not being provided. In the previous tripartite call with my open university tutor, Veselin Dzholev stated that he could not provide any support in terms of completing the financial segment of my degree. This was followed by a great interested to know what would happen if I did not complete the paper as a result of no support being offered. My Open University tutor explained DXC would be responsible for breaking contract by not providing support required to complete my apprenticeship degree and as a result would have to pay in full as I re-sit my third year of university. Then re-sit my final year as well as my apprentice period being extended by another year due to breach of contract.”[19]The allegation that the above passage tended to show wrongdoing within s.43B(1)(b) is not the only argument raised on the face of the claim form but, for present purposes, the discussion focused on whether it was likely that the claimant would show that that information tended to show that the respondent was in breach of a legal obligation to the claimant within s.43B(1)(b) by not providing the workplace training agreed under the contract (page 90). It is said to be in the public interest because of the claimant’s status as an apprentice. The respondent as an employer of a large number of apprentices was therefore receiving public funds to support the training aspect of the apprenticeship.[20]In the claimant’s witness statement (paragraph 8.a) he describes the way in which he considered the communication set out his concerns. He states that he had concerns that the respondents were failing to provide him with appropriate role based training in breach of the apprenticeship agreement.[21]The second particular aspect of the communication of 4 November that is relied on is under sub-heading 2 “Documented threats to illegally remove me from the business”. In particular, there is a sentence towards the end of the first full paragraph under that sub heading that reads: “It is a contractual requirement for a degree apprentice to maintain a working management role and role-based training throughout the period of apprenticeship. It is DXC’s responsibility to ensure this requirement is met and that early careers managers/line managers are aware of the requirements in place to ensure apprentices are meeting these requirements.”[22]It is worth noting that the claimant had apparently written this email of 4 November in response to a communication of 3 November that starts at page 106 of the hearing file. In it Mr Dzholev described what, on his witness statement account, were attempts to find alternative work for the claimant because of the non-availability of work at the right level for him in his part of the business. In the final paragraph of the 3 November email (page 106) Mr Dzholev proposed scheduling a meeting with the claimant on 2 December to review progress in finding a suitable opportunity for him in a different part of the business. He states: “At that meeting we will also need to determine whether it is sustainable for the business to keep continuity with your employment if no suitable opportunity for work can be found for you to undertake within the foreseeable future.”[23]When the claimant refers to “Documented threat to illegally remove me from the business” as he does on page 108, that appears on the face of it to be a reference to the warning that, from the respondent’s point of view, they do not consider themselves able to continue with the claimant’s employment if no work can be found for him. In the context of that warning on 3 November, the claimant makes the statement that quoted at para.21 which is relied on as a protected disclosure. This is made clear in paragraph 8.b of the claimant’s witness statement.[24]The final aspect to the alleged disclosures (C’s statement paragraph 8.c) stems from particular passages under section 3 and section 5 of the email of 4 November. These can broadly be described as the claimant stating that there have been threats to remove him from his employment that he regards as retaliation and a continuation of bullying and harassment in the context of the claimant’s return to work from sickness related absence. It is said that this tended to show that his health and safety was, or would be, endangered.[25]As I indicated, whilst it is true that at a final hearing a tribunal would have to be satisfied of all of the matters that are set out in paragraph 15 of Mr Gorasia’s skeleton argument, for the purposes of today’s application I am focusing on whether the claimant is likely to be able to show:a. that the information tended to show that he genuinely and reasonably believed that it tended to show one of the types of wrongdoing identified in s.43B(1);b. that he genuinely and reasonably believed that the disclosure was in the public interest; andc. that the reason, or principal reason, for the dismissal was the fact that he had made the communication of the 4 November 2024.[26]The third type of communication of information that I have referred to - that based on points 3 and 5 under the email of 4 November - is not likely to be found to tend to show wrongdoing within s.43B(1)(d), namely that the health and safety of an individual has been, is being, or is likely to be endangered. The information does not say more than it “can result” in injury, loss or damage. Furthermore, the claimant is not likely to show the public interest element. The claimant may succeed at final hearing on those argument but my assessment of his prospects at this preliminary stage does not amount to a pretty good chance of succeeding.[27]So far as the first and second aspects of the alleged protected disclosure, as clarified, it seems to me that the claimant is likely to prove that the communication tended to show relevant wrongdoing within s.43B(1)(b), a breach of a legal obligation to the claimant. He is also likely to be able to show that he reasonably believed that the information showed a breach of a legal obligation to him and/or the third party finance provider.[28]When I turn to the question of whether there was a genuine and reasonable belief that that communication was in the public interest, I have revisited the case of Chesterton Global Ltd v Nurmohamed [2017] I.R.L.R. 837. There are two stages to the approach to the public interest element of the test for a protected disclosure. First did the worker, the claimant in this case, subjectively believe at the time that the disclosure was made that it was in the public interest? Secondly, was that belief was objectively reasonable? It is on that latter limb that Chesterton Global Ltd v Nurmohamed is a key authority.[29]There is nothing on the face of the first 4 November email that makes patent that the claimant had in mind others than himself. He may have done so; he may satisfy the employment tribunal at a final hearing that he has done so. For a company such as the respondent, who is a provider of practical training to an apprentice, and who is receiving public funds in respect of that training, to fail to provide the work that is the practical element of an apprenticeship, and to say that they intend that, if they consider they have no work available when in a particular period of time to terminate the contract, has the potential to be a matter of public interest.[30]The matters that the Court of Appeal in Nurmohamed said might be relevant factors when considering whether particular information tended to be objectively in the public interest rather than only in the interest of the worker’s own contractual employment rights, include the number of people whose interests are affected, the nature of the interest affected and the degree to which it is affected, whether the failure is accidental or deliberate and the identity of the person responsible.[31]It may well be, and no doubt this will be argued at any final hearing, that in the present case there are factors which are relevant to the question of whether it was objectively reasonable to consider that the information in 4 November email was communicated in the public interest. Factors might include:a. the numbers of apprentices that the respondent has contracts with;b. the nature of the interests affected in the sense that the worker is, as an apprentice, training in order to achieve a particular status that will equip them for a future career;c. the nature of the alleged wrongdoing is said to involve a company in a tripartite arrangement with a public body and the use of public funds.[32]Whilst this underlines that the communication is capable of objectively being something that is reasonable to conclude in the public interest does not, in my view, meet the test of “likely” that the claimant genuinely and reasonably believed it to be in the public interest because the focus of that email is on the claimant’s own personal circumstances.[33]That being the case, I have reached the view that it is not “likely” (as that word is understood in this context) that the claimant will establish that the communication in question was a protected disclosure. If I am wrong about that, my view is that it is not “likely” (i.e. there is not a pretty good chance) that the claimant will show that the reason, or principal reason, for the dismissal was a protected disclosure.[34]The factors that were relied on by the claimant to support such a conclusion on a broad brush impressionistic view are set out in Mr Palmer’s skeleton argument at paragraph 26. He points to the timing of the dismissal, the ongoing recruitment of other apprentices - there are some pages in the hearing file about generic publicity to prospective graduates and apprentices - and he points out the length of time before the end of the apprenticeship. In other words he argued that dismissal came a fairly short time before the end of the apprenticeship. It was in fact nine months before the apprenticeship was due to end and that seems to me to be a fairly neutral point.[35]The point about timing is made much less stark and is blunted because the context of the alleged disclosure is that it appears to be a response to an email of 3 November raising the risk of the end of employment. That self-evidently came before the communication that is relied on as a disclosure. True it is that, at a final hearing, there would quite a lot to unpack of the detailed chronology between September 2024 and January 2025. However, there is evidence to support the respondent’s reason for dismissal which pre-dates the alleged protected disclosure.[36]As far as recruitment is concerned, this seems to me to be an evidential point which is not possible to resolve at this stage. The respondent will argue that the claimant was on a degree apprenticeship and the question of whether work was available at a particular level. That is not something that is possible to resolve at this preliminary hearing. It is not sufficiently clear cut evidence for me to say that it means that the claimant is likely to establish that the reason, or principal reason, was the communication of 4 November.[37]The respondent may have questions to answer about why they terminated the employment, but my impression of the evidence so far is that the strength of the case shown does not meet “likely” in the sense that it has been interpreted in the authorities. The respondent has advanced other factors which they argue support Mr Dzholev’s statement evidence but that is not for me to resolve at this stage. My reasoning is primarily that there is contemporaneous evidence of a pre-existing reason prior to the alleged disclosure and, in the light of that, I am not satisfied that the claimant is likely to succeed on the causation element. Approved by: