Employment Judge M SiddiqueIn person for claimantMr Rudd (instructed by counsel) for respondentDate 19 March 2026
REASONS
[1]The purposes of the hearing was to adjudicate upon the Claimant’s application for interim relief.
The hearing
[2]The hearing was listed for three-hours and both parties attended via video platform.[3]By a claim form presented on 3rd February 2026 the Claimant brought an application for interim relief pursuant to s.128 of the Employment Rights Act 1996 on the basis that he was dismissed on 30th January 2026, with the sole or principal reason being that he had made a protected disclosure, a claim falling under s.103A of the Employment Rights Act. 32.[4]The claim for interim relief has been brought within the time frame specified in s.128(4) ERA. The Notice of Hearing is dated 9th February 2026, so the parties have had seven days’ notice.[5]I do not make any findings of fact, however, it is useful to summarise the Claimant’s claim under s.103A ERA and the parties’ submissions.[6]I heard oral submissions from both the Claimant and Mr. Rudd for the Respondent during the hearing, which I will reference below where relevant. Documents[7]I had before me:(i) A bundle from the Respondent consisting of 184 pages;(ii) A witness statement from Mr Pearson for the Respondent; and(iii) A skeleton argument from the Respondent.(iv) From the Claimant, notes from the disciplinary meeting with Mr Pearson Summary of facts[8]The Claimant was employed as a driving examiner with the Driver and Vehicle Standards Agency (DVSA). He commenced employment on 05/02/2024 and his employment ended on 30/01/2026.[9]It is the Claimant’s case that on 01/09/2025 he made a whistleblowing complaint, to a senior manager that his line manager, Mr Khan, was illegally audio recording in the office where he and his colleagues were working. This complaint was made over the phone and then followed up by email sent later that evening by the Claimant.[10]Following this complaint, later that afternoon, the Claimant encountered Mr Khan in the office and there was a conversation about the complaint that had been made. The facts about this conversation are disputed. The Claimant says he was told that Mr Khan would ensure he lost his job and Mr Khan’s version of events is that the Claimant was aggressive and threatening and telling him to leave the office. Mr Khan followed this up with a complaint to the police about the alleged threatening behaviour.[11]The Claimant then proceeded to complete a driving test and resume his work. Upon return to work the next day, on 02/09/2025, he was suspended from work on account of the complaint by Mr Khan of threatening behaviour and the police report.[12]The complaint against the claimant was investigated by Adam Harris an employee from another region and the disciplinary proceedings by Mr Pearson a manager also from a different region.[13]The culmination of the disciplinary process was that the Claimant was dismissed by letter dated 29th January 2026, for gross misconduct dismissal from 30/01/2026.
The Law
[14]By virtue of s.94 Employment Rights Act 1996 (‘ERA’), employees have, subject to certain conditions, a right not to be unfairly dismissed. By s.103A ERA, where the reason, or if more than one, the principal reason, for dismissal is that the employee made a protected disclosure within the meaning of s.43A ERA, the dismissal is automatically unfair.[15]In Williams v. Michelle Brown AM UKEAT/0044/19/OO at [9], HHJ Auerbach summarised the five issues, which a Tribunal is required to decide in relation to whether something amounts to a qualifying disclosure: ‘It is worth restating, as the authorities have done many times, that this definition breaks down into a number of elements. First, there must be a disclosure of information. Secondly, the worker must believe that the disclosure is made in the public interest. Thirdly, if the worker does hold such a belief, it must be reasonably held. Fourthly, the worker must believe that the disclosure tends to show one or more of the matters listed in subparagraphs (a) to (f). Fifthly, if the worker does hold such a belief, it must be reasonably held.’[16]In respect of the public interest element of the requirements, guidance was given by the Court of Appeal in Chesterton Global Ltd v Nurmohammedi [2017] EWCA Civ 979 that, where an interest is personal in character there may be features which make it reasonable to regard the disclosure as being in the public interest as well as in the personal interests of the worker. Relevant factors can include(a) the numbers in the group whose interests the disclosure serves,(b) the nature of the interests affected,(c) the nature of the wrongdoing disclosed and(d) the identity of the alleged wrongdoer.[17]In order for a qualifying disclosure to be a protected disclosure it must be made in accordance with s.43C to 43H ERA.[18]The ‘reason’ or ‘reasons’ for dismissal is/are the factor(s) operating on the decision maker’s mind which causes him/her to take the dismissal decision (Croydon Health Services NHS Trust v. Beatt [2017] ICR 1420). Interim relief applications[19]Section 129(1) provides that an application for interim relief should be granted if “it appears to the tribunal that it is likely that on determining the complaint to which the application relates the tribunal will find” that the reason or principal reason for dismissal was one of the statutory automatically unfair reasons.[20]The EAT has held that “likely” in this context means that the Claimant must show that his case has “a pretty good chance” of success, which means that something better than likelihood on the balance of probability (i.e. better than a 51% chance): Taplin v C Shippam Ltd [1978] ICR 1068, as approved and followed in London City Airport Ltd v Chacko [2013] IRLR 610 at para 10 and (His Highness Sheikh Bin Sadr al Qasimi v Robinson) UKEAT/0283/17 (22.12.17, unreported).[21]The Tribunal must be satisfied that the Claimant is “likely” to succeed on each necessary aspect of his claim (Robinson para 11), applying that high threshold, before relief can be granted, i.e. that it is “likely” he made a protected disclosure within the statutory definition (as to which see below) and that it is “likely” it was the sole or principal reason for dismissal.[22]The EAT in Chacko gave further guidance on the approach to be taken by the Tribunal at paragraph 23: “ In my judgment the correct starting point for this appeal is to fully appreciate the task which faces an employment judge on an application for interim relief. The application falls to be considered on a summary basis. The employment judge must do the best he can with such material as the parties are able to deploy by way of documents and argument in support of their respective cases. The employment judge is then required to make as good an assessment as he is promptly able of whether the claimant is likely to succeed in a claim for unfair dismissal based on one of the relevant grounds. The relevant statutory test is not whether the claimant is ultimately likely to succeed in his or her complaint to the Employment Tribunal but whether “it appears to the tribunal” in this case the employment judge “that it is likely”. To put it in my own words, what this requires is an expeditious summary assessment by the first instance employment judge as to how the matter looks to him on the material that he has. The statutory regime thus places emphasis on how the matter appears in the swiftly convened summary hearing at first instance which must of necessity involve a far less detailed scrutiny of the respective cases of each of the parties and their evidence than will be ultimately undertaken at the full hearing of the claim.”[23]The summary assessment of the material before it to determine this question, is described by HHJ Eady QC in Robinson as a necessarily “broad-brush approach” and “very much an impressionistic one”. (Robinson, see Headnote and para. 54 and 59). Conclusions
Discussion
[24]It is not the role of an employment judge hearing such an application to make findings of fact. I am reliant on the parties to set out the material facts for each side highlighting their strongest points. There has not been any oral evidence.[25]I have considered whether there is a “pretty good chance” that the Tribunal at the final hearing will find five things:(1) that the claimant had made a disclosure to their employer;(2) that they believed that that disclosure tended to show one or more of the things itemised at (a)–(f) under s.43B(1);(3) that they believed that the disclosure was made in the public interest(4) that those beliefs were reasonable; and(5) that the disclosure was the principal reason for their dismissal. (1) Whether disclosures made[26]The Respondent accepts that there was a disclosure of information, on 01/09/2026, that Mr Khan may have been recording audio in the office. In those circumstances there is a pretty good chance that the Tribunal at the final hearing will find this in favour of the Claimant. (2) Whether the Claimant believed that disclosure tended to show a relevant failure[27]I find that the Claimant has a pretty good chance of establishing that the disclosure tended to show a relevant failure in the sense that it was a breach of a legal obligation. The Claimant says he believed it was a breach of GDPR or human rights.[28]When considering whether the Claimant believed that the disclosures tended to show the alleged failures, I bear in mind that a belief, for these purposes, may be mistaken yet nevertheless genuinely held. So, in this case the Claimant would not have to show that there definitely has in fact been a breach of GDPR or human rights.[29]Whilst the Respondent says that as this recording was done in a private office it was not necessarily a breach of GDPR and recordings can be permissible for instance when wearing a body camera, the Claimant does not need to show an actual breach. I am not satisfied that the analogy of a body worn camera when interacting with customers is analogous to a secret audio recording of colleagues. I am satisfied from looking at the emailed complaint and other documents that there is a pretty good chance that the Tribunal at a final hearing will find that Claimant genuinely believed the conduct was a breach of a legal obligation.[30]There is a pretty good chance that the Tribunal will find that this belief was reasonably held as Mr Khan does not appear to dispute that his phone was left recording audio in the staff room (Page 60 bundle), the recording was done without permission or consent of the parties recorded- and so was essentially a secret recording of potentially personal and sensitive private conversations of employees. (3) Whether the Claimant believed the disclosure was made in the public interest[31]When considering this issue I have tried to take into account all relevant considerations I have been drawn attention to. The Claimant’s main point was that this could have affected quite a lot of people. He identified potentially 6 people who used the office who could be affected but also indicated that other people visited the office and could also have been recorded. The Respondent submitted that this was, in their view, one of the main areas the Claimant would struggle with at a final hearing. It was the Respondent’s position that this recording occurred in a closed private office of a test center, that this was not of public interest but a private interest of a small number of individuals in a private office.[32]I accept that, the number of people affected is not the sole criteria but that is the main factor put forward by the Claimant today. I have noted that the person alleged to have done the wrong doing was his direct manager and does not appear to have held a particularly senior position within the DVSA. On the evidence before me the disclosure related to conduct affecting relatively few people in a private office setting, conducted during the course of a workday. I can see little discernible public interest in this disclosure. I am not satisfied that the Claimant has shown he believed there was a public interest in this disclosure. Even if he had a subjective belief in the disclosure being of public interest, he has not evidenced a reasonable basis for that belief in the evidence and submissions brought to my attention.[33]I consider that there is not a pretty good chance that the Tribunal will find that the Claimant believed that this disclosure was made in the public interest (4) Whether beliefs are reasonable[34]I consider that there is a pretty good chance that the Tribunal will find that the Claimant believed that the disclosure tended to show a section 43B(1) failure- specifically that of a breach of a legal obligation. As indicated above I believe there is a pretty good chance the Tribunal will find this belief was reasonably held.[35]However, as noted above I do not accept there is a pretty good chance that the Claimant believed this disclosure was made in the public interest or that this belief was reasonably held for the reasons I have given above. (5) Whether the protected disclosure was the ‘sole or principal’ reason[36]I have identified that it is not likely that the Claimant will prove a protected disclosure has been made due to the lack of a reasonable belief that a disclosure was made in the public interest.[37]I did however go on to consider the final issue as I heard submissions on this.[38]The test for this application is whether the Claimant is pretty likely to show that the sole or principal reason for his dismissal was the claimed protected disclosure made on 01/09/2025.[39]This is a case where the conduct leading to the dismissal occurred on the same day as the disclosure (about the audio recording by the line manager) and it is said by the Respondent that this is a case where the reason for the dismissal is related to the disclosure, but the dismissal was not because of the disclosure itself but bad conduct after the Claimant found out about the recording and made the initial disclosure.[40]The Respondent relies on the reasons for the dismissal set out in the dismissal letter and the fact that it was investigated and conducted by independent managers unconnected to the region the Claimant worked in. I have taken into account the witness statement of Mr Pearson, who held the disciplinary meeting with the Claimant and made the decision to dismiss him. Mr Pearson is clear in his statement that he reached the decision to dismiss the Claimant because he believed he acted in an aggressive and threatening manner to his line manager, Mr Khan, and this fell below professional conduct and workplace standards. This evidence is untested and I understand that the Claimant believes Mr Pearson erred in his interpretation of the evidence, for example of the statement given by Michelle Rees (Driving Examiner), and that he failed to give sufficient weight or to take into account other evidence, for example that Mr Raynor (Driving Examiner), had expressed the view that accusations of the Claimant being violent were completely out of scope.[41]I accept that the timing of the complaint for gross misconduct raises concern as to an ulterior motive that would require scrutiny. However, this has to be set alongside the fact that the investigation of the misconduct and the disciplinary meeting and decision, were taken by managers with no apparent connection to the region the Claimant or Mr Khan worked in, and who were not involved in investigating the protected disclosure or disciplinary against Mr Khan.[42]The Claimant in submissions also relied on police records which he says showed Mr Khan was aware of the suspension before it took place. However, during the hearing, a closer examination of the police records indicated, the fact of the Claimant’s suspension, was apparently notified to the police after the suspension, and was not apparent evidence of collusion or predetermined action by Mr Khan.[43]Many of the matters complained about by the Claimant were to do with the interpretation of the evidence by Mr Pearson and the weight he gave to certain witnesses and not to others. This is a matter that can be tested when oral evidence is given, a matter which cannot be determined today, which of course is not the purpose of an interim relief application.[44]On the documents and evidence I heard, and given, importantly, the relative independence of the investigator and decision maker, who were not involved in investigating the protected disclosure, the Claimant has not shown that there is a pretty good chance the principal reason for dismissal was a protected disclosure. It is worth repeating that the Tribunal is not making findings of fact on these issues. This is a summary assessment based on limited documents and submissions at an early stage in the proceedings.
Conclusion
[45]In circumstances where there are good reasons to believe that there was another cause for the Claimant’s dismissal, namely misconduct, and crucial factual matters are in dispute, I do not find that at this stage, based on the material before me, I can conclude that the Claimant has a pretty good chance of showing that the principal reason for his dismissal was a protected disclosure.[46]Accordingly, the Claimant’s application for interim relief is refused. Approved by: