Mr S A Ali v Altruistic Care Ltd and Others: 6003671/2025 Mr S A Ali v Altruistic Care Ltd and Others: 6003671/2025
EMPLOYMENT TRIBUNALS
Case No 6003671/2025
Between
Mr S A AliClaimantAltruistic Care Ltd and OthersRespondent
Before
Employment Judge KM RossIn person for claimantMr Ratledge (instructed by Counsel) for respondentMr Rutledge counsel for respondentDate 17 March 2025
JUDGMENT
[1]The claimant’s application for interim relief pursuant to s128 and 129 Employment Rights Act 1996 does not succeed. Approved by
REASONS
[1]The claimant has made an application for interim relief which means he requests the Tribunal to make an order that the respondent re-employs him pending the final hearing of this matter. The claimant was employed by the respondent in their Care Home at Plane Tree Court in Stockport as a Deputy Manager from 3.9.24 until 28.1.25 when he was dismissed. He says the real reason he was dismissed was because he made protected disclosures.[2]I had a bundle of documents of 154 documents prepared by the respondent, and documents, marked evidence 1 and 2 and 3 provided by the claimant together with his witness statement and application for interim relief. I heard from the claimant. Case No. 6003671/2025 2[3]I had a helpful skeleton argument from counsel for the Respondents.[4]The relevant law is Section 128 and 129 of the Employment Rights Act of 1996.The question I had to ask myself was whether it is likely, based on the information before me today, the Tribunal will find at the final hearing the claimant was automatically unfairly dismissed for making protected disclosures. The burden of proof in an application of this sort, which is made at a very early stage, even before the response has been filed, is on the claimant.[5]I reminded myself of the relevant case law. The correct legal test for me to apply is whether the claimant has a “pretty good chance of success.” That is how it was expressed in Taplin -v- Shipman Limited 1979 IRLR 450. Ministry of Justice v Safraz 2011 IRLR 562 reminds me this is interpreted as a significantly higher likelihood than just more likely than not. Similar guidance was given in Woollenberg -v- Global Gaming Ventures (Leeds) EAT 0053/18.[6]There is therefore a high threshold for a claimant to succeed in application of this type. At this early stage the Tribunal does not have all the relevant documents and witness statements.[7]I reminded myself of the issues the Tribunal will be considering at the final hearing. The claimant says he was unfairly dismissed pursuant to s103A Employment Rights Act 1996.[8]The first thing a Tribunal will need to know is what are the disclosures of information that the claimant relies on. This was not entirely clear as the claimant only referred to 2 protected disclosures in his interim relief application. However, it became clear that he relies on three disclosures of information. The first one is written, an email dated 25 November 2024 which he said he sent “to the Quality Assurance Manager Trudy Riley” and “the company directors”. He said he reported “issues and concerns about vulnerable service users, poor care resulting in serious health and safety concerns.” A copy of the content of the email is at p16 of the claimant’s “Evidence1” file.[9]The claimant says he relies on two other disclosures. The second disclosure was on 24 January 2025 to an external body, the Care Quality Commission. He sent us a copy of that email to the Tribunal the start of this hearing. The disclosure to the CQC was that the claimant reported “all the issues and concerns relating to service users suffering from health and safety issues from poor care practices and of staff and management incompetency which resulted in severe outcomes for the vulnerable residents”.[10]The third disclosure was also a telephone call on 27 January 2025 between the claimant and a CQC Advisor where the claimant restated his concerns about health and safety and wellbeing in the respondent’s Home. There is no written account of the phone call. Case No. 6003671/2025 3[11]At this point I pause. The Tribunal always has regard to the overriding objective. I am aware the claimant is a litigant in person. An interim relief application can only be made in relation to a complaint of unfair dismissal. The claimant has also brought a claim for whistleblowing detriment which is not directly relevant to this hearing.[12]In the interim relief application, the claimant clearly stated he was only relying on the 2 complaints to the CQC as disclosures causing his dismissal.[13]However in his claim form he also brings a detriment claim. He stated he also wants to rely on his dismissal as a detriment. For his detriment claim he relies on his previous disclosure, the 25 November 2024 disclosure to his employer. The claimant may not know this, but an employee is not entitled to bring a detriment claim for his dismissal because the claim is to be made under Section 103A ERA 1996.[14]I refer to this to give the claimant the benefit of the doubt and to explain that I have also considered his first disclosure to the employer on 25 November 2024 as a potentially protected disclosure relevant to his dismissal, even though he does not refer to it in his interim relief application.[15]I turn back to the issues in this case. At the final hearing the Tribunal will scrutinise each of those disclosures and it must ask itself in relation to each of the three disclosures whether the claimant disclosed information as opposed to a making allegation. The Tribunal will also have to ask whether the claimant believed the disclosure tended to show that one of a number of things had happened, that a criminal offence had been committed, or that there was a breach of a legal obligation, or a miscarriage of justice, or health and safety was being endangered or the environment was endangered or information tending to show any of these things has been or is likely to be concealed.s43B(1) (a)-(f). ERA 1996. The claimant will also have to satisfy the Tribunal that his belief was reasonable.[16]The claimant will also have to satisfy the Tribunal an additional requirement in relation to disclosures 2 and 3 because they were made to an external body, not the employer.[17]If he can show one or more of those disclosures were protected and qualifying within the meaning of section 43 Employment Rights Act 1996, the Tribunal at the final hearing will consider the issue of causation- whether the real reason for the termination of his employment was because he made those disclosures of information.[18]There are a number of potential problems for the claimant.[19]The first and significant one is that the respondents will argue that the claimant did not disclose information in any of the disclosures-they will submit the claimant just made a generalised allegations.[20]In terms of protection for whistle blowers under the Employment Rights Act 1996, it is not enough for a claimant to make generalised allegations, the Case No. 6003671/2025 4 Tribunal must be satisfied the claimant disclosed information. Cavendish Munro v Geduld 2010 IRLR 38[21]If the respondents are successful in this argument the claimant’s claim will fail. On the information I have read of the claimant’s disclosures he may struggle to show he has disclosed information rather than allegations.[22]Even if the Tribunal is satisfied the claimant disclosed information and that all the disclosures are protected and qualifying, it must also be satisfied that causation is established.[23]The heart of this case, like most whistleblowing claims,likely to be causation.[24]It is the claimant’s case that the only reason or the principal reason he was dismissed was because he made those disclosures. The respondents say that is not correct.[25]The respondents say that there was a breakdown in working relationships between the claimant and other employees at the Care Home. In particular, they will argue there was a breakdown in relationship between the claimant and his line manager who was the Care Home Manager. The respondents say there are documents to show the breakdown of the relationship predated the claimant’s disclosures to the CQC. The respondents say they are going to be able to show that the real reason the claimant was dismissed in his probationary period was not to do with the protected disclosures but was to do with the breakdown in relationships. Only a Tribunal who sees all the relevant documents, who hears live evidence from the claimant, live evidence from the dismissing officer, and any other relevant witnesses can determine the real reason why the claimant was dismissed.[26]The claimant says the respondent did not follow any formal disciplinary procedures and his dismissal was very close in time to the CQC disclosures of information and that is also why a Tribunal will find he was automatically unfairly dismissed. He also suggests the respondents’ concerns are fabricated.[27]The respondents state their concerns were not fabricated and there is a documented history of issues and problems with the claimant. They state they will be able to satisfy the Tribunal that the real reason for the claimant’s dismissal was not protected disclosures. The respondents also state that no formal disciplinary process was followed because the claimant had only been employed for a short period of time and counsel drew my attention to a clause in the claimant’s contract of employment which supports that assertion.[28]The respondents also state they did not know that the claimant had complained to the CQC. That is a factor they will rely on to suggest the disclosures were not relevant to the dismissal. The claimant agrees he did not inform the respondents that he complained to the CQC but states they must have known he did so because the CQC sent Inspectors into the Respondent’s Home the day before he was dismissed. That is a factual Case No. 6003671/2025 5 dispute but only the Tribunal hearing all the evidence in the case can make a final decision.[29]Taking all of these factors into account, I am not satisfied that the claimant has shown that he has got a “pretty good chance of success”. He certainly has an arguable case, he has certainly disclosed information which may be protected and qualifying and he was certainly dismissed but the reason why that happened I cannot say on the evidence that is before me there is a pretty good chance he will establish the dismissal was due to the disclosures.[30]There is a significant chance that the Tribunal will find that some or all of the disclosures are not protected and qualifying within the meaning of the Employment Rights Act, particularly on the basis they are allegations, not information. If the Tribunal finds none are protected and qualifying, the claim will fail at that stage.[31]There is also a very significant chance that the Tribunal may prefer the respondent’s evidence to the claimant’s evidence as to the reason his employment was terminated.[32]For those reasons the application for interim relief does not succeed.