Employment Judge HawksworthMr M Williams (instructed by counsel) for respondentDate 9 May 2025
JUDGMENT
The claimant’s application for interim relief is refused.
REASONS
[1]The respondent is a recruitment company. The claimant was assigned by the respondent as an AP Analyst to London Business School from 20 January 2025 until 21 January 2025 when she was told that she was being withdrawn from the assignment. She presented her ET1 claim form on 25 January 2025. She says she was unfairly dismissed contrary to section 103A of the Employment Rights Act 1996 and she has made an application for interim relief.[2](The claim against four other respondents was rejected because the claimant had not notified Acas for early conciliation. Although there is an exemption for claims which include an application for interim relief, an application for interim relief can only be made against an employer.)[3]The purpose of this hearing is to determine the interim relief application. The hearing was originally listed for 26 March 2025. It was postponed on that day by EJ Annand on the claimant’s application, because of the claimant’s ill health. It was rescheduled for 9 April 2025 but postponed on the claimant’s application because her representative was not available. That hearing was postponed and rescheduled for 7 May 2025, as explained in the notice of hearing that was sent to the parties on 8 April 2025. 1 of 9[4]For the hearing on 7 May 2025, the respondent provided an electronic bundle with 450 pages. It was an extended version of the bundle provided for the hearing on 26 March 2025 and had been put together with documents from both parties in compliance with orders made by EJ Annand on 26 March. The respondent also provided short statements by Peter Coupe, lead talent partner for the respondent, and Nick Lilley, managing director of the respondent (7 pages in total). The claimant sent two emails with about 45 attachments at 6.08am on the morning of 7 May 2025, and these were both forwarded to me.[5]The hearing was by video and was attended by the claimant, by Mr Wiliams on behalf of the respondent, and by Mr Coupe and Mr Lilley of the respondent. At the start of the hearing, the claimant said she was expecting John Robertson to attend as her representative, but he was not present. We took a break for 10 minutes to allow the claimant to contact Mr Robertson. When we restarted, the claimant said she had not been able to contact Mr Robertson.[6]I asked the claimant how she would like to proceed. She said she would like to apply for a postponement, or in the alternative to be allowed to make written submissions. She said she would also like to make oral submissions to highlight relevant points in the bundle which she said contradict the respondent’s witness statements, and she would like to listen to Mr Williams’ submissions and respond to them.[7]For reasons given at the hearing, I refused the application to postpone the hearing. In summary, applications for interim relief should be heard as soon as practicable, and there have already been two previous postponements at the claimant’s request. The date of this hearing had been known to the parties since 8 April 2025. I allowed the request to make written submissions, and the claimant clarified that she would not need any further time for this, because she wanted to rely on a document she had prepared previously. (She sent this after she made her oral submissions.)[8]Next, I explained the test that I apply when I am considering whether to grant interim relief. I explained the legal principles in respect of protected disclosures and in respect of unfair dismissal for making protected disclosures. I explained the procedure. Both parties would make submissions on the interim relief application, starting with the claimant. The claimant would have an opportunity to reply after the respondent’s submissions. I would read the documents the parties took me to in the bundle, including the witness statements, but I would not hear any witness evidence. After submissions, there would be a break for me to consider the application and the parties’ submissions. The hearing would restart and I would tell the parties my decision and my reasons for reaching that decision.[9]The bundle included 19 judgments in other claims brought by the claimant against other respondents. I told the parties that I did not think submissions on the details of these other cases would assist me to make my decision on the claimant’s interim relief application.[10]The claimant then made her submissions which took about 50 minutes. She 2 of 9 took me through the bundle, highlighting points which she said contradicted the respondent’s evidence. In response to questions from me, she explained what she said were her whistleblowing disclosures, by reference to her ET1 claim form and the further information she had provided on 21 February 2025 in response to an order by REJ Foxwell on 14 February 2025.[11]After lunch I heard from Mr Williams on behalf of the respondent. His submissions took about 40 minutes.[12]I gave the claimant an opportunity to reply to Mr Williams’ submissions. During her reply, she said that she would be making a complaint to the Bar Standards Board and her MP about Mr Williams’ conduct at the hearing, because he had said in his submissions that she had been involved in 62 tribunal claims including 9 interim relief applications. I said that while I did not consider the detail of those other claims to be relevant to the issues I have to consider, it was not improper for Mr Williams to have included this information in his submissions. I said that if he had said anything improper, I would have stopped him. During her reply the claimant was addressing Mr Williams directly at times. I asked her not to do that but to make any comments in reply to me.[13]At the request of the claimant and without objection by the respondent, after the hearing (during deliberation time) I listened to a recording of a telephone conversation between the claimant and Mr Lilley which took place on 21 January 2025 after the claimant received an email notifying her that she was being withdrawn from the assignment. The recording was 1 minute and 48 seconds.[14]After a break for deliberation, I told the parties my decision and explained my reasons for it. The claimant had thought she might not be able to attend this part of the hearing but in the event she was able to do so and was supported by her aunt.[15]One final point to mention here is that the claimant made a written application for a rule 22 order/strike out based on the respondent’s failure to present an ET3. I have been forwarded an email by the tribunal administration which shows that the respondent sent an ET3 to tribunal by email on 21 March 2025, within the required timeframe. The ET3 has not yet been processed, which is why the claimant has not received it. However, as the ET3 was sent to the tribunal within the required time, there is no ground for a rule 22 order or strike out of the response on the basis of failure to present an ET3. The claimant’s submissions[16]In her further information and at the hearing, the claimant said that she had made whistleblowing disclosures in telephone calls to the ICO, the EHRC, the HSE and the DWP on 18 or 19 January 2025. She said she told them there had been a failure to comply with legal obligations, namely ‘the Equality Act 2010, human rights legislation 1998, health and safety legislation 1974, data protection legislation 2018 and the employment rights legislation’. I asked her about this. She did not explain what information she 3 of 9 provided or what she had said about how the respondent had breached the legislation referred to. In other words she did not tell me what she had said in her alleged disclosures that the wrongdoing by the respondent was, or what information she had provided.[17]The claimant said that she made a further whistleblowing disclosure on 20 January 2025. She said she did so by forwarding an email she had sent on 20 January 2025 to London Business School and to Mr Coupe asking for reasonable adjustments. She said that she forwarded this email to the ICO, the HSE, the EHRC, the DWP, her manager, CEO and HR. She said in her ET1 that in this disclosure, she had alleged that there had been a failure to comply with legal obligations, namely Equality Act 2010, health and safety legislation 1974, data protection legislation 2018. There was no copy of the forwarding email in the bundle. Again the claimant did not identify what she had said the wrongdoing was, or what information she had provided.[18]The claimant said that these disclosures were the reason for her dismissal.[19]During her submissions, the claimant referred to some settlement discussions between the parties. I explained that these kinds of communications are private to the parties under a principle called ‘without prejudice’. This means they should not be referred to in tribunal hearings. In response to a question by the claimant, I explained that if she thought there was some impropriety in settlement discussions, she could ask the tribunal to decide whether the without prejudice ‘label’ should be lifted from a particular communication. I said we would not have time to consider that issue at this hearing.[20]After her oral submissions, the claimant sent written submissions by email which I read as part of my deliberations. These written submissions contained a summary of the law and some case law on whistleblowing. (They also included a summary of the law on employment status: this was not an issue for determination at this hearing.) The respondent’s submissions[21]The respondent’s case was that the claimant’s disclosures do not meet the legal requirements to make them protected disclosures. Mr Williams said that even if there was a protected disclosure, the claimant could not show any causal link between a disclosure and the dismissal. He said the reason for the termination of the assignment was that the claimant had not attended work on the first or second days of her assignment, and the respondent had not been able to reach her when they tried to contact her to find out where she was.[22]Mr Williams also said that as the claimant’s assignment was for 4 weeks only, a reinstatement, reengagement or continuation of employment order would not be relevant in any event.
The law
[23]At the hearing, I did not read out the statutory provisions. Instead, at the start of the hearing and in the reasons I gave at the hearing, I set out a 4 of 9 summary of the legal principles, as explained below in paragraphs 30 to 33. In these reasons, I include the statutory provisions for completeness. I have also added the names of the cases to which I referred when I explained the legal tests I would be applying.[24]The statutory provisions relating to interim relief are set out in sections 128 and 129 of the Employment Rights Act 1996. Section 128(1) says (as far as is relevant to this case): “128 Interim relief pending determination of complaint (1) An employee who presents a complaint to an employment tribunal that he has been unfairly dismissed and - (a) that the reason (or if more than one the principal reason) for the dismissal is one of those specified in - i) …section 103A… may apply to the tribunal for interim relief.”[25]Section 129(1) explains the test to be applied when considering an application for interim relief: “129 Procedure on hearing of application and making of order (1) 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 (of if more than one the principal reason) for the dismissal is one of those specified in – i) …section 103A…”[26]Section 103A says: “103A Protected disclosure 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.”[27]Sections 43A and 43B of the Employment Rights Act define protected disclosures: “43A Meaning of “protected disclosure” In this Act a “protected disclosure” means a qualifying disclosure (as defined by section 43B) which is made by a worker in accordance with any of sections 43C to 43H. 5 of 9 43B Disclosures qualifying for protection (1) In this Part a “qualifying disclosure” means any disclosure of information which, in the reasonable belief of the worker making the disclosure, 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, or is likely to be deliberately concealed…”[28]Sections 43C to 43H explain the circumstances in which a qualifying disclosure is a protected disclosure. Section 43C says: 43C Disclosure to employer or other responsible person (1) A qualifying disclosure is made in accordance with this section if the worker makes the disclosure — (a) to his employer…”[29]Section 43F provides for disclosure to a prescribed person. The Information Commissioner and the Health and Safety Executive are prescribed persons for certain disclosures.[30]In summary, the interim relief application is made under sections 128 and 129 of the Employment Rights Act. The test is whether the claimant’s claim of whistleblowing unfair dismissal is likely to succeed. Likely here means that the claimant has ‘a pretty good chance’ of success at the full hearing (Taplin v C Shippam Limited [1978] IRLR 450 (EAT), Dandpat v University of Bath and another UKEAT/0408/09).[31]It is important to emphasise that this is a high threshold. It is a higher degree of likelihood than if I were to consider whether it was ‘more likely than not’ that the claim would succeed (Wollenberg v Global Gaming Ventures (Leeds) Ltd EAT 0053/18). I also have to consider whether the claimant has a pretty good chance of success on all of the required elements of the claim, that is all of the points that will have to be met in order for the claim to succeed. 6 of 9[32]The essential elements for a complaint of whistleblowing unfair dismissal to succeed are as follows:a. As to whether there was a qualifying disclosure, the questions I have to consider are as follows. First, whether there was a disclosure of information. Second, did the claimant believe that the disclosure tended to show a relevant failure, that is one of the six types of wrongdoing that are set out in section 43B. Third, if she did believe that, was the claimant’s belief reasonable. Questions four and five relate to the public interest: did the claimant believe that the disclosure of information was made in the public interest and, if so, was her belief reasonable.b. If there was a qualifying disclosure, was it made within one of sections 43C to 43H, such that it was a protected disclosure.c. If those elements are met such that it seems to me that there is a pretty good chance of the claimant establishing that she made one or more protected disclosure, I also need to consider whether there is a pretty good chance of success in showing that the protected disclosure or disclosures were the sole or principal reason for the dismissal. This would mean that there would be a pretty good chance of showing that the dismissal was automatically unfair under section 103A.[33]Those are the legal tests that I have to apply. I have to make an ‘expeditious summary assessment’, doing the best I can with the untested evidence advanced by each party, of whether the claimant is likely to succeed (London City Airport Ltd v Chacko [2013] IRLR 610 (EAT)).
Conclusions
[34]The claimant made her application for interim relief within the required 7 day time period.[35]When considering the application for interim relief I have to carry out a summary assessment as to how the claim looks on the material that I have been given. I have not heard any oral evidence, we have not had any cross examination or testing of witness evidence, and I am not undertaking a factfinding exercise. I make a broad assessment based on the information that I have been shown and the submissions that I have heard from the parties. I have to consider whether the claim has a ‘pretty good chance’ of success, a higher threshold than whether the claim is more likely than not to succeed. The threshold is high for policy reasons, as the consequences that follow for an employer if interim relief is granted are significant.[36]What I am setting out now is the gist of my reasoning, this is appropriate where I am looking at an interim matter rather than a final judgment.[37]As I explained in my summary earlier, I make a broad assessment of whether the claimant has a pretty good chance of succeeding in establishing all the required elements of a qualifying disclosure. I first consider whether there was a disclosure of information which the claimant 7 of 9 believed tended to show a relevant failure, and if so, whether her belief was reasonable. I come back to the question of public interest after that.[38]In relation to the disclosures made on 18 and 19 January 2025, the claimant has not provided detailed particulars of what exactly she said. It is not clear to me what information the claimant provided in these alleged disclosures. It seems she is saying that she conveyed information which tended to show that there had been a failure to comply with a legal obligation. She explained her alleged disclosures in only the most general terms, by reference to the legislation she says was breached, but without providing any detail of what she says the breaches were. It seemed that she might have meant that she said there was a breach of data protection legislation in respect of the forwarding of her request for reasonable adjustments by Mr Coupe to Mr Lilley. However, that did not take place until 20 January so cannot have been the subject of the 18 and 19 January disclosures.[39]In relation to the email disclosure on 20 January, I have seen an email sent by the claimant on 20 January email requesting reasonable adjustments but not an email forwarding it. It is that forwarding email which the claimant says contained her disclosure, not the original email. She does not allege any wrongdoing in her original 20 January email. She may have included additional information in her forwarding email, saying what the wrongdoing was, but it is not clear what that additional information, if any, was.[40]When the tribunal at the full hearing is looking at whether a document or conversation contained a protected disclosure, it will focus on the actual words used, to assess whether the various elements of the legal test are met. It will consider carefully what information has been provided and which of the relevant failures is relied on. At this stage, I do not know enough about the alleged disclosures to conclude that the claimant has a pretty good chance of succeeding in showing that she made disclosures of information about a relevant failure.[41]I have reached a similar conclusion on the public interest part of the test for qualifying disclosure, that is the questions of whether the claimant believed that a disclosure was made in the public interest and, if she did, whether that belief was reasonable. The claimant did not explain why she thought her disclosures were in the public interest. The lack of clarity about what was actually said by the claimant means that I do not have enough information to be able to say that the claimant has a pretty good chance of succeeding in establishing that she reasonably believed it was in the public interest to make the disclosure. My assessment is that this point also does not reach the threshold required to grant interim relief.[42]The basis on which the claimant says that any qualifying disclosure would be a protected disclosure is also unclear. She might be saying that her disclosures were made to her employer, or that they were made to a prescribed person such as the ICO or HSE. But that was not made clear either in the claimant’s further information about her disclosures or in her submissions to me. It is another essential element of the test in respect of which I do not have enough information to say that the claimant has a pretty good chance of success. 8 of 9[43]So, my assessment at this stage is that the prospect of the claimant succeeding in showing that she made one or more qualifying and protected disclosure is not sufficiently high to meet the required threshold of the interim relief test.[44]If I had concluded that there was a pretty good chance of the claimant establishing that she made one or more protected disclosure, I would have to consider whether there was also a pretty good chance of the claimant establishing that a protected disclosure was the sole or principal reason for the dismissal. That requires there to be a causal link between a disclosure and the dismissal. The tribunal would have to decide that one or more protected disclosure was the reason for the dismissal.[45]This is not a case where the respondent has not put forward an alternative reason for dismissal. The respondent said it terminated the claimant’s assignment because she did not attend work on the first and second days of her assignment and it could not get in touch with her. This alternative explanation for the assignment being terminated was not undermined by any of the evidence I have been shown at this hearing, or by the recording I listened to. Having undertaken an assessment on the basis of this information, it seems to me that the chances of the claimant succeeding in showing that the sole or principal reason for dismissal was a protected disclosure (rather than her not attending work and not being in touch with the respondent) do not meet the required level of likelihood.[46]I have concluded that the test to award interim relief is not met in relation to either the question of whether the disclosures were protected, or the reason for dismissal. For these reasons, the application for interim relief cannot succeed.[47]The next step in this case will be the processing of the respondent’s ET3, following which the standard initial consideration by a judge will take place. That will include consideration of scheduling the next hearing. Approved by:
Introduction
[1]I heard the claimant’s application for interim relief on 7 May 2025. I refused the application, giving oral judgment and reasons at the end of the hearing. The claimant requested written reasons. Written reasons dated 9 May 2025 were sent to the parties on 2 June 2025.[2]On 8 May 2025 in an email the claimant requested reconsideration of the judgment on interim relief. The claimant’s application says: “I am requesting a reconsideration in regards to the EJ Howasworth refusing my interim relief application which is on the grounds that 1) she took in to account irrelevant information by relying on past judgements in which counsel mark Williams refer her to and in particular in regards to messi v change grow live, 2) a failure to make findings on the issue- Jocic v London Borough, 3) she applied the wrong test in respect of detriments, 4) she applied the wrong legal test in respect of causation, 5) incorrect application of the law - Adecco v cox and she made a decision that is procedural wrong, perverse and unfair.” The rules on reconsideration[3]Rule 68 of the Employment Tribunal Procedure Rules 2024 says: “(1) The Tribunal may, either on its own initiative (which may reflect a request from the Employment Appeal Tribunal) or on the application of a party, reconsider any judgment where it is necessary in the interests of justice to do so. 1 of 3 (2) A judgment under reconsideration may be confirmed, varied or revoked. (3) If the judgment under reconsideration is revoked the Tribunal may take the decision again. In doing so the Tribunal is not required to come to the same conclusion.”[4]The rule allows reconsideration only where reconsideration is necessary in the interests of justice. This reflects the public interest in the finality of litigation. The reconsideration process is not an opportunity for a party to seek to reopen matters which the tribunal has determined without any basis for doing so. There must be some basis for reconsideration.[5]Rule 69 explains when an application for reconsideration must be made: “Except where it is made in the course of a hearing, an application for reconsideration must be made in writing setting out why reconsideration is necessary and must be sent to the Tribunal within 14 days of the later of—(a) the date on which the written record of the judgment sought to be reconsidered was sent to the parties, or(b) the date that the written reasons were sent, if these were sent separately.”[6]Rule 70 explains the process to be followed on an application for reconsideration under rule 69. It says: “(1) The Tribunal must consider any application made under rule 69 (application for reconsideration). (2) If the Tribunal considers that there is no reasonable prospect of the judgment being varied or revoked (including, unless there are special reasons, where substantially the same application has already been made and refused), the application must be refused and the Tribunal must inform the parties of the refusal. (3) If the application has not been refused under paragraph (2), the Tribunal must send a notice to the parties specifying the period by which any written representations in respect of the application must be received by the Tribunal, and seeking the views of the parties on whether the application can be determined without a hearing. The notice may also set out the Tribunal’s provisional views on the application. (4) If the application has not been refused under paragraph (2), the judgment must be reconsidered at a hearing unless the Tribunal considers, having regard to any written representations provided under paragraph (3), that a hearing is not necessary in the interests of justice. 2 of 3 (5) If the Tribunal determines the application without a hearing the parties must be given a reasonable opportunity to make further written representations in respect of the application.” Conclusions on the claimant’s application[7]I have considered the claimant’s application and I have concluded that there is no reasonable prospect of the original decision being varied or revoked. There is nothing to suggest that variation or revocation of the original decision is necessary in the interests of justice.[8]In relation to the grounds put forward by the claimant:8.1 Ground 1: I did not take into account any judgments in the claimant’s previous claims. I explained at the hearing and in the written reasons that I did not consider the detail of those other claims to be relevant to the issues I had to consider. I decided the claimant’s application for interim relief on its merits.8.2 Ground 2: As I explained at the hearing and in the written reasons, an application for interim relief requires a summary assessment and not a fact-finding exercise. The case of Jocic v London Borough of Hammersmith and Fulham (UKEAT/0194/07) does not appear to be relevant.8.3 As to grounds 3, 4 and 5, I set out and applied the statutory provisions and case law relevant to the application for interim relief, to protected disclosures and to unfair dismissal because of making a protected disclosure. The claimant’s grounds do not identify any specific error of law or procedural failing. I do not understand the reference to detriments. If the claimant considers that there was an error of law in the interim relief judgment, the appropriate avenue would be to appeal to the Employment Appeal Tribunal.[9]The claimant’s application for reconsideration is refused under rule 70(2). Approved by: