Mr C Ashu v Care UK Services Ltd: 6004071/2025 and 6004640/2025

EMPLOYMENT TRIBUNALS

Case No 6004071/2025, 6004640/2025

Between

Mr C AshuClaimant

Care UK Services LtdRespondent

Before

Employment Judge Andrews

Mr J Boyd (instructed by Counsel) for respondent

Date 13 August 2025

JUDGMENT

The claimant’s application for interim relief is refused.

REASONS

[1]In this matter the claimant complains that he was unfairly constructively dismissed and that at least part of the reason for that dismissal was that he made protected disclosures. He also claims multiple types of discrimination, victimisation and unpaid monies. His employment ended by resignation on 3 February 2025 and he made this application for interim relief within his first claim form which was submitted on 6 February 2025. Relevant Law & Procedure

[2]By section 128(1) of the Employment Rights Act 1996, an employee who presents a complaint of automatic unfair dismissal pursuant to section 103A may apply to the Tribunal for interim relief. Section 103A provides that an employee who is dismissed shall be regarded as unfairly dismissed if the reason or principal reason is that the employee made a protected disclosure.

[3]An application for interim relief will be granted where, on hearing the application, it appears to the Tribunal that it is likely that on determining the complaint to which the application relates, a Tribunal will find that the reason for dismissal is the one specified (s.129(1)). The burden of proof is on the claimant.

[4]The case of Taplin v Shippam Ltd

[1978] ICR 1068

EAT defined ‘likely’ for these purposes as meaning a ‘pretty good chance of success’. That test was reaffirmed in the case of Dandpat v The University of Bath & ors

UKEAT/0408/09

and in Ministry of Justice v Sarfaz

[2011] IRLR 562

, where the then President of the EAT 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.’

[5]The standard of proof required is greater therefore than the balance of probability test to be applied at the final hearing. This is necessary as the granting of such relief will prejudice a respondent who will be obliged to treat the contract as continuing until the conclusion of the proceedings. Such a consequence should therefore not be imposed lightly.

[6]Pursuant to rule 94 of the Employment Tribunal Rules of Procedure 2024, an interim relief application is considered at a public preliminary hearing and the Tribunal must not hear oral evidence unless it directs otherwise. Documents & Submissions

[7]I did not consider it appropriate to direct that oral evidence be heard but I did consider witness statements from the claimant and for the respondent from Ms M Message and Ms I Johnson-Dyer. Both parties also submitted documents that together ran to more than 350 pages. Given the nature of the interim relief process, I only considered a very small proportion of those documents but did consider those I was taken to by the parties.

[8]The representatives for both parties submitted helpful written arguments and supplemented them orally at the hearing.

[9]Mr Ntui clarified that the claimant relies upon alleged protected disclosures in two written grievances. The first was submitted on 16 October 2021 with a final outcome on 18 November 2021. His appeal was successful. The second was submitted on 28 October 2024 with a first outcome on 20 December 2024. The claimant appealed that outcome and a meeting was scheduled for 13 January 2025 but the claimant did not attend due to illness. He was off sick from early December 2024 until he resigned on 3 February 2025. The appeal was concluded in any event and he was informed of that outcome on 18 March 2025.

[10]In order for a section 103A claim to succeed, the Tribunal will have to conclude not only that the claimant made a protected disclosure or disclosures but also that there was the necessary causal link between the disclosure(s) and the dismissal. This case is complicated of course by the fact that the dismissal alleged was a constructive one.

[11]As to whether there is a ‘pretty good chance of success’ of the claimant establishing that he made a protected disclosure in 2021, I conclude that there is not.

[12]There is nothing expressly on the face of that email that clearly indicates a protected disclosure. It is written in terms of a personal complaint with the exception of a final brief comment ‘…do not forget the predominant objective of the company’. The claimant’s argument is that part of the grievance relates to him not being able to access the respondent’s HARBOUR system which meant that he could not do his role properly which in turn would affect the service users. This argument is somewhat speculative and certainly not strong enough to persuade me at this stage of the necessary chances of success.

[13]Similarly, there is nothing on the face of the second grievance in October 2024 to clearly indicate a protected disclosure. Again it is predominantly written in terms of a complaint about the treatment of the claimant personally. There are references in the complaints that imply standard processes and policies were not being followed and his argument is that these show breaches of various regulations implementing the Health and Social Care Act 2008. There is no express reference in the grievance to such breaches, or indeed the Act or Regulations so again the necessary features of a protected disclosure have to be constructed or implied. I note that there is a reference within the grievance to the respondent supporting ‘vulnerable people’ and failures to obtain character references and question employment gaps giving ‘cause for concern’. He also refers to poor implementation of policy.

[14]My assessment is that there is a slightly stronger argument that the second grievance amounts to a protected disclosure although I am still not satisfied that the strength of that argument amounts to a ‘pretty good chance of success’.

[15]The application fails therefore at that hurdle but for completeness I turn to whether there is a ‘pretty good chance of success’ of proving a causal link between any protected disclosure and the claimant’s (constructive) dismissal.

[16]First, insofar as the first alleged protected disclosure is concerned, there is a significant delay in time between that grievance and the subsequent resignation. That of course is not fatal to the claim but does makes it difficult to say that there is a ‘pretty good chance of success’.

[17]As for the second alleged protected disclosure, the claimant faces a problem in being able to show a logical progression from the protected disclosure to the alleged breach of the implied term of trust and confidence and the resignation. By definition, by the time the claimant submitted the grievance he had already experienced the treatment about which he complained as a breach of his contract. Therefore logically it cannot be the protected disclosure, even if there was one, that triggered the poor treatment that in turn triggered the resignation.

[18]Again therefore I conclude that in this respect the claimant does not have a pretty good chance of success.

[19]Accordingly the claim for interim relief fails. APPROVED BY JUDGE ANDREWS