Employment Judge AspinallIn person for claimantMiss Nowell (instructed by Counsel) for respondentDate 11 September 2025
JUDGMENT
[1]The claimant’s application for interim relief under Section 161 Trade Union and Labour Relations (Consolidation) Act 1992 is dismissed on withdrawal. 2. The claimant’s application for interim relief under Section 128 Employment Rights Act 1996 fails.[3]His complaints proceed to a case management hearing. Approved for promulgation by JUDGMENT having been given orally on 11 September 2025 and written reasons having been requested on 19 September 2025 in accordance with Rule 60 (4)(b) of the Employment Tribunals Procedure Rules 2024, the following reasons are provided
REASONS
The claimant’s application for interim relief under section 128 Employment Rights Act 1996 failed for the reasons set out below.
Background
[1]By a Claim Form dated 24 February 2025 and having achieved an ACAS certificate between 19 February 2025 and 24 February 2025 the claimant brought complaints of age discrimination, public interest disclosure detriment and trade union detriment. He also said he been subjected to unfair redundancy selection procedures and unfair disciplinary processes.[2]At the time of his claim form he remained employed. On 8 July 2025 he was dismissed for gross misconduct; in relation to his behaviour at meetings and dishonesty in holding himself out as a union representative. He made an application to amend his complaint, which was accepted, to include automatically unfair dismissal relying on protected public interest disclosure under section 103A Employment Rights Act 1996 and he sought interim relief.[3]The claimant sought interim relief under two different jurisdictions. He relied on section 128 of the Employment Rights Act in relation to his section 103A dismissal. He also relied on section 161 TULRCA 92.[4]At the outset of today’s hearing we discussed those jurisdictions. I referred the parties to section 161 (3) TULRCA which provides that the Tribunal shall not entertain an application for interim relief unless there is a certificate in writing signed by an authorised official of the independent trade union stating that on the date of the dismissal the employee was a member or proposed to become a member of the union and that there appear to be reasonable grounds for supposing that the reason for his dismissal was one alleged in the complaint.[5]The claimant accepted that he had no such certificate. The issue of his membership of the union and role as a trade union official representative is in dispute in this case. The claimant withdrew his application for interim relief under TURLCA. It was dismissed on withdrawal.
The List of Issues
[6]There was a sole issue for determination today. Is it likely that on determining the complaint to which the application relates that is his automatically unfair dismissal complaint the Tribunal will find that the reason or if more than one the principal reason for the dismissal is that the claimant made a protected disclosure or disclosures? That is to say has the applicant established that he has a pretty good chance of succeeding in that final hearing? Procedure and Documents[7]The claimant had prepared a written opening statement/submission and had provided his own bundle of documents, including authorities and summary statements of the relevant principles to be derived from each authority running to 200 pages. He was a well prepared and well informed litigant in person. The respondent had prepared a written position statement, written submissions on interim relief and had provided a bundle which ran to 212 pages plus a bundle of authorities.[8]Neither side requested any reasonable adjustments.[9]Support was given to the claimant litigant in person in the use of accessible language and avoidance of legal jargon.[10]Rule 94 Employment Tribunal (Constitution and Rules of Procedure) Regulations 2013 sets out that the tribunal hearing an application for interim relief shall not hear oral evidence unless it directs otherwise. The Tribunal also had regard to Rule 41 in relation to its ability to regulate its own procedure and Rule 3 to act fairly and justly and in accordance with the overriding objective.[11]The procedure at hearing was agreed as follows The Tribunal would proceed by way of submission only• The claimant would make his application and would be allowed approximately forty minutes to put his case.• The respondent would have approximately forty minutes in which to respond to the claimant’s case to oppose the application.• The Tribunal would perform an expeditious summary assessment on the material available. The Tribunal would not look at all the documents but would focus on those to which it was referred by the parties in their submissions.• The Tribunal would then adjourn to reach a decision.[12]I explained the potential outcomes of the hearing, including an order for reinstatement, reengagement or if not agreed, an order for the continuation of the claimant’s contract. Everyone understood that would mean the claimant would continue to be paid, would not work and that at final hearing even if the respondent succeeded it would not be able to recover that pay.[13]I took the claimant to relevant law and the legal test for today and gave him a short break before beginning his submissions. The claimant made his submissions in a structured way, taking me through a timeline of what had happened to him, giving emphasis and force to his key arguments.[14]The respondent made it submissions and I adjourned to make a decision. Relevant Law Section 128 Employment Rights Act 1996 sets out the availability of interim relief. 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 …….103 or 103A, or] …. may apply to the Tribunal for interim relief.(2) The tribunal shall not entertain an application for interim relief unless it is presented to the tribunal before the end of the period of seven days immediately following the effective date of termination (whether before, on or after that date).(3) The tribunal shall determine the application for interim relief as soon as practicable after receiving the application.(4) The tribunal shall give to the employer not later than seven days before the date of the hearing a copy of the application together with notice of the date, time and place of the hearing.(5) The tribunal shall not exercise any power it has of postponing the hearing of an application for interim relief except where it is satisfied that special circumstances exist which justify it in doing so. 12. Section 129 addresses the procedure for hearing an 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 (or if more than one the principal reason) for the dismissal is one of those specified in—] (i) section …….103 or 103A, … (2) The tribunal shall announce its findings and explain to both parties (if present)— (a) what powers the tribunal may exercise on the application, and (b) in what circumstances it will exercise them. (3) The tribunal shall ask the employer (if present) whether he is willing, pending the determination or settlement of the complaint— (a) to reinstate the employee (that is, to treat him in all respects as if he had not been dismissed), or (b) if not, to re-engage him in another job on terms and conditions not less favourable than those which would have been applicable to him if he had not been dismissed. (4) For the purposes of subsection (3)(b) “terms and conditions not less favourable than those which would have been applicable to him if he had not been dismissed” means, as regards seniority, pension rights and other similar rights, that the period prior to the dismissal should be regarded as continuous with his employment following the dismissal. (5) If the employer states that he is willing to reinstate the employee, the tribunal shall make an order to that effect.(6) If the employer— (a) states that he is willing to re-engage the employee in another job, and (b) specifies the terms and conditions on which he is willing to do so, the tribunal shall ask the employee whether he is willing to accept the job on those terms and conditions.(7) If the employee is willing to accept the job on those terms and conditions, the tribunal shall make an order to that effect.(8) If the employee is not willing to accept the job on those terms and conditions— (a) where the tribunal is of the opinion that the refusal is reasonable, the tribunal shall make an order for the continuation of his contract of employment, and (b) otherwise, the tribunal shall make no order.(9) If on the hearing of an application for interim relief the employer— (a) fails to attend before the tribunal, or (b) states that he is unwilling either to reinstate or re-engage the employee as mentioned in subsection (3), the tribunal shall make an order for the continuation of the employee's contract of employment. 13. The burden of proof lies with the applicant. The test in section 129, likely, in this context requires a higher standard than the balance of probabilities. In Taplin v Shippam Limited [1978] ICR 1068 likely was said to mean “a pretty good chance of succeeding” in the final complaint for the proscribed reason. Short background context 14. The Tribunal makes no findings of fact, having heard no oral evidence but records the following background to the application.
Relevant Law
[15]The claimant was employed from 27 July 2023 as a Business Analyst ICT working around 36 hours per week for the respondent and earning around £ 3458 gross monthly pay. The respondent was considering restructure from around the middle of 2024. He raised concerns in September, October, November and December 2024 and February 2025 by way of grievances and concerns about unprofessional conduct, the law being broken, data breaches and other things. He alleges protected qualifying public interest disclosures. He sought to join the union and become a representative. He says he suffered detriments because of his disclosures and union membership. He says he was dismissed because of them. The respondent says it was consulting about restructure from the middle of 2024 and later consulting about redundancy and that the claimant was motivated to protect his own job and position. It will put the claimant to strict proof that his disclosures amounted to qualifying protected disclosures. It says they played no part in its decision to dismiss him which was because of his conduct at meetings, it cites the fact that it suspended him the next working day after receiving complaints from attendees about his behaviour at a meeting on 23 December 2024, and his having falsely held himself out to be a union representative. Applying the Law[16]This matter came to an interim relief hearing before any preliminary hearing for case management. The PID’s had not been clarified. The Claim Form attachment referred to 6 whistleblowing disclosures in a section sub headed “Whistleblowing Disclosures”. Some of those were clearly not disclosures as they included for example a request for a meeting . Elsewhere in the Claim Form Attachment were other correspondences that the claimant has today referred to as disclosures. In short, there was no agreed list of disclosures relied on today. I did not want to tie the hands of the next judge who will interpret the Claim Form and clarify the disclosures relied on with the claimant at the case management hearing in due course.[17]The claimant had prepared a document which I have called his disclosure map which set out five alleged public interest disclosures (PIDS). 23 October 202429 December 20246 February 202511 February 202518 February 2025 There was no application to amend the claim form to rely on the 5 PIDS in the claimant’s map document.[18]The respondent directed me to the claimant’s claim form attachment and submitted that the claimant for the purposes of interim relief can only rely on those alleged PIDS that are pleaded in the Claim Form. For the purposes of the interim relief hearing the claimant agreed that he relied on the PIDS as in the, as yet uninterpreted, Claim Form[19]I make no criticism of the claimant for having prepared his disclosure map, this will be useful and helpful to the next judge at the preliminary hearing for case management. That judge will support the claimant as a litigant in person to clarify the PIDS he relies on. I looked at it. Because the complaint and PIDS have not yet been clarified I took his case at its highest.[20]We all agreed that I would rely on the following PIDS but not limit the claimant to the content about them in the Claim Form Attachment at this stage. Ordinarily, more detail is often needed and obtained at case management stage. I looked at the mapping document, took into account the claimant’s submissions about PIDds 1,2,and 3 and looked at the source documents I was taken to in the bundle for each of PIDS 1,2,and 3. This seemed to me a fair and pragmatic way to balance the interest of the respondent in knowing which PIDS it must make submissions about for today’s purposes and in not restricting the claimant to the exact words of the Claim Form only at this early stage. The First PID 23 October 2024 made orally in a teams meeting to Lisa Windle Described by the claimant in his mapping document as concerns about UK SPF project abandonment, IT capital programme mismanagement, procurement irregularities and misuse of public funds, but described in the claim form as Disclosed concerns to the Assistant Director about what I believed was mismanagement of the digital transformation programme. I was not taken to any minutes of that meeting. There was no oral evidence as to its content. At the hearing the claimant said he raised several serious concerns with Lisa Windle about Business transformation and change initiatives and decision making practices undermining the success of the transformation. The claimant went on to submit that he had told Lisa Windle that he was concerned that the respondent would be unable to provide accurate information to government and that there may be mishandling of budgets. The Second PID 29 December 2025 email to senior leaders seven page document at pages 23 to 30 of the claimant’s bundle entitled “Proposed business transformation and change service restructure feedback”. It was sent to Chris Twomey, K Lovelady and James Pearce. The claimant alleged the proposed structure was biased showed favouritism and was discriminatory. The claimant alleged the proposed structure would indirectly discriminate against staff with shorter service lengths and may be a breach of the public sector equality duty and that the criteria that were proposed for the restructure may erode employee trust and breach the implied duty of good faith. The claimant said that he was being victimised as having as a result of having raised a formal grievance and whistleblowing disclosure. The claimant alleged that been a mismanagement of internal opportunities that the appointment of a new application developer and that this may have infringed the best value duty under the Local Government Act of 1999. He protested about the consolidation of business analyst roles, about the lack of union involvement in consultation and referred to breaches of TU L RCA. He criticised selection criteria and criticised the manner of presentation of the restructure : They are getting this restructure wrong, that has adverse impact on me and others. The claimant says in that document he will soon be submitting a second whistleblowing disclosure. He clearly did not think that anything in the document of 29 December 2024 itself amounted to whistleblowing at the time he wrote it. He was referring to PID1 and anticipating a second PID after 29 December 2025. In his Claim Form attachment he described PID 2 as Submitted a formal complaint to the Chief Executive regrading the restructure process, citing favouritism and victimisation. His Claim Form attachment was structured with this alleged disclosure appearing not in the disclosures part of the attachment but under a sub heading “Unfairly placed at risk of redundancy in the new service restructure” The Third PID that is pleaded is PID 5 in the claimant’s mapping document from 18 February 2025 which was a letter to senior leaders. In his mapping document the claimant described it as raising lack of competitive tendering, breach of procurement thresholds, contract splitting, unlawful contract variations, mismanagement of public funds, UK SPF governance, GDP are/data protection compliance. In his claim form attachment this appears under the Whistleblowing Disclosures sub heading saying wrote to the Council providing more details about my original whistleblowing disclosure. Submissions[21]The claimant in submission took me through a timeline of events and his mapping document. His overarching submission was that the chronology of events will show a clear link between his disclosures and the detriments and his dismissal.[22]The respondent focused on the three PIDs in the claim form. It submitted that the claimant was resisting restructure and that after his behaviour at a meeting on 23 December 2024 it suspended and subsequently dismissed him for gross misconduct. It says he has been dishonest about his unions status. Applying the law[23]Section 43B ERA 96 sets out the law on disclosures qualifying for protection. It provides (1) In this Part a “ qualifying disclosure ” means any disclosure of information which, in the reasonable belief of the worker making the disclosure, is made in the public interest and 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, is being or is likely to be deliberately concealed.[24]The law protects disclosures of information. Information must convey facts rather than just make an allegation Cavendish Munro Professional Risks Management Ltd v Geduld [2010] IRLR 38. Fact and allegation together can amount to a disclosure, as can an allegation alone provided the allegation contains sufficient information to qualify under s.43B(1) ERA 1996 Kilraine v London Borough of Wandsworth [2018] IRLR 846. Generic allegations which lack specificity are unlikely to disclose information Leclerk v Amtrac Certfication Ltd UKEAT/0244/19 and Williams v Michelle Brown AM UKEAT/044/19. A disclosure of information can be made through a singular or series of separate communications Norbrook Laboratories (GB) Ltd v Shaw UKEAT/0150/13; and whether a communication discloses information is to be assessed at the point of the purported disclosure McDermott v Sellafield Ltd [2023] EAT 60.[25]Where there has been a disclosure of information, it must, in the worker’s reasonable belief, tend to show one of the wrongdoings identified within s.43B(1) ERA 1996. Firstly, whether the worker themselves believed the information tended to show the relevant wrongdoing; and if so, secondly, whether the worker’s belief, objectively viewed, was reasonable.[26]It does not matter if the worker’s belief turns out to be wrong, or that the disclosure did not fall within one of the protected categories. What is to be assessed is whether the belief of the worker, objectively viewed, was reasonable that the information disclosed tended to show a relevant failure Babula v Waltham Forest College [2007] IRLR 346 (CA).[27]The Court of Appeal in Chesterton Global Ltd (t/a Chestertons) v Nurmohamed [2017] EWCA Civ 979 stated that a disclosure must in the reasonable belief of the worker making the disclosure be in the public interest and set out four factors to be taken into account when deciding whether a disclosure was made in the public interest;(i) the numbers in the group whose interests the disclosure served;(ii) the nature of the interests affected and the extent to which they are affected by the wrongdoing disclosed,(iii) the nature of the alleged wrongdoing disclosure and(iv) the identity of the alleged wrongdoer.[28]Though a disclosure can be ‘self-serving’ in that it affects only one person the motive for the disclosure is not the issue. The issue is whether the Claimant subjectively believed the disclosure was made in the public interest, and whether that belief was, objectively viewed, reasonable. Does the claimant have a pretty good chance of establishing that he made protected disclosures ?[29]Does the claimant have a pretty good chance of showing that PID 1 was a qualifying protected disclosure ? No, at this stage in the absence of oral evidence and fact finding the claimant has not established that it is likely that on determining the complaint he will be able to establish that the disclosure he made was a protected disclosure. His pleading and submissions lacked clarity as to the information provided. I am concerned that he may not meet the Kilraine sufficiency test. He told me in submission that he raised several serious concerns with Lisa Windle about Business transformation and change initiatives and decision making practices undermining the success of the transformation.[30]I see no allegation there and insufficient information to amount to a protected disclosure. It seems to me he was expressing his opinion, no doubt with some expertise, about changes the respondent proposed. The claimant went on to submit that he had told Lisa Windle that he was concerned that the respondent would be unable to provide accurate information to government and that there may be mishandling of budgets. That detail was not in the pleaded PID in his Claim Form, some of it was in his mapping document and some was expansion orally today. Whilst I accept the respondent’s submission that I must look at the Claim Form to asses the prospects, I have been taken to wider information and even, taking the claimant’s position at its widest, I find he would struggle on the information point.[31]Further, PID 1 may struggle on the public interest point. Having read his letter of 20 October 2024 requesting the meeting which then took place on 23 October 2024 in which the first alleged disclosures were made, I find he may struggle to establish that he reasonably believed that the matters he protested about were in the public interest. It seems to me in the summary assessment made at this interim stage that the claimant was protesting about restructure and about strategic and operational decisions of the respondent that he did not agree with because of their impact on him.[32]At this stage I conclude, in the absence of oral evidence, the claimant may not have a pretty good chance of establishing a qualifying protected public interest disclosure for PiD 1 at final hearing.[33]In relation to PID2 this was written, and detailed and had more information and allegation and may have a pretty good chance of being a protected public interest disclosure on the information and breach of legal obligation points. There may yet be concerns about public interest but the law allows for there to be a disclosure in both the personal and public interest.[34]On PID 3 this was a letter and again was detailed and appeared to me to contain both information and allegation. This may have a pretty good chance of being a protected public interest disclosure on the information and breach of legal obligation points. There may yet be concerns about the reasonableness of the claimant’s belief in some of the breaches he alleges and on the public interest point but the law allows for there to be a disclosure in both the personal and public interest. Does the claimant have a pretty good chance of showing that he was dismissed because of his disclosures[35]He has not established that he has a pretty good chance of succeeding in that final hearing. He has not been able to refer to any evidence of any causal link between his dismissal and his disclosures other than their contemporaneity.[36]The claimant was suspended after he had made two alleged disclosures and dismissed after he had made the three disclosures relied on in his claim form. However, that chronology is only part of the chronology that requires more detailed analysis because it is also apparent at this stage that the claimant was suspended after colleagues had made complaints about his conduct in meetings on 26 September 2024, and 23 December 2024 amongst others.[37]There are co-existing narratives in chronology such that at this stage it cannot be said that the claimant has a pretty good chance of establishing causation in relation to the PIDS.[38]I note that 6 January 2025 was the first working day after the 23 December 2024 meeting and I had sight of documents today that show that immediately in response to that meeting the senior leadership team took steps to take advice on suspending the claimant, informed the union of their plan to suspend the claimant, and then suspended him that next working day after the 23 December meeting, 6 January 2025.[39]At this early stage, it appears to me that it is arguable that the chronology shows the respondent acted in response not to disclosures but to his conduct. It says the claimant was fighting to save his own role, that his disclosures, grievances, the timing of his joining the union and seeking to become a union representative and informing his colleagues in a teams meeting on 6 January 2025 that he was a union member / representative / official (subject to fact finding), all postdate his role being at risk and speak to him seeking to protect his position and preserve his employment.[40]I note his communication of his union role takes place on the next working day after the undoubtedly difficult meeting on 23 December 2024. The same day that he is suspended.[41]I enquired as to the identities of the people involved in the complaints against the claimant and the people he said were decision makers motivated against him because of his disclosures. They are not the same people. For his argument about shared decision maker motivation; that he was suspended and dismissed because of his disclosures, to succeed, he will need to establish that there was a conspiracy that included 14 members of staff making complaints about his behaviours so as to cover up, or create a sham investigatory and disciplinary process, to protect those who suspended and dismissed him allegedly and promptly thereafter for his own behaviour.[42]The investigation into the claimant’s behaviour and then his grievance and the grievances of his colleagues against him was undertaken by an external HR consultant Jane Caroll. The decision to dismiss was taken by an associate director from a different directorate Helen Core. The claimant’s argument about shared decision maker motivation would need to extend to include Jane Caroll and Helen Core.[43]I pressed the respondent on reason for dismissal. I asked what it was the claimant had said or done. I wanted to see that set out as clear allegation in a letter inviting the claimant to a hearing and I wanted to see notes of the hearing where the claimant was given a fair chance to respond to that specific detail and then a letter of outcome. Today was not the place for oral evidence. Whilst I am concerned about the lack of specificity as to the words used and behaviours exhibited by the claimant provided by the respondent that the respondent says amounted to gross misconduct, that is not a matter for today.[44]Today I’m tasked with asking does the claimant have a pretty good chance of establishing that he was dismissed because he made protected disclosures. I find he does not have a pretty good chance of establishing that he was dismissed because of those disclosures. When I say because of, I’m using non-legal language, the relevant legal test will be for him to establish that the sole or principal reason for his dismissal was the protected disclosure. In his automatically unfair dismissal case the burden of proof for establishing that causation will lie with the claimant. That is going to be a significant burden to discharge in this case where the decision to dismiss was made by an associate director from another directorate, the investigation was conducted by an external independent investigating officer, that investigating officer interviewed and paraphrased into written investigation reports the comments made by the complaining colleagues and where he chose not to participate in the disciplinary process.[45]The claimant’s overarching submission has been that his protected disclosures have been downgraded, reframed, relabelled, mislabelled (his words) as private disagreements or HR matters. The claimant spoke of linguistic repurposing by the respondent repackaging, repurposing, fabrication and attempts to avoid self-incrimination by the respondent. He was arguing that there was a conspiracy and a cover up. I saw a letter from the respondent inviting him to complete and submit a whistleblowing form within its Whistleblowing policy and Procedure. That does not seems consistent with a conspiracy or cover up. He did not do that. He did not fill out a Whilstleblowing complaint at the time. I also note that the claimant had been invited to attend investigatory interviews, disciplinary hearing and/or make written representations but did not do so. Again, those attempts to have him engage and provide opportunities for him to be heard do not appear consistent with a cover up or conspiracy.[46]The claimant’s submissions relied heavily on the timeline but I explained today that it is possible that there are co-existing narratives in that timeline and that contemporaneity does not equate to causation. A Tribunal will need to hear evidence on reason for dismissal. An agreed chronology in neutral terms will be helpful and the next judge at preliminary hearing for case management may direct that the parties provide one.[47]The application for interim relief fails. The required standard for a continuity of employment order is not been met. The case will proceed now to a preliminary hearing for case management. A separate notice of hearing will be sent to the parties.[48]At that hearing the next judge will clarify the complaint. That will mean identifying the alleged PIDS relied on, clarifying the detriments and dismissal complaints.[49]The claimant has indicated today that it is in his intention to withdraw the age discrimination complaint. I encouraged him to do so in writing before the preliminary hearing for case management.[50]The claimant told me today that he has audio recordings of meetings. I gave direction that they must be preserved, transcribed and in due course provided to the respondent in audio and transcript format for the transcripts to be agreed.