Ms S Cueva v Kanlungan Filipino Consortium: 6009298/2025
EMPLOYMENT TRIBUNALS
Case No 6009298/2025
Between
Ms S CuevaClaimantKanlungan Filipino ConsortiumRespondent
Before
Employment Judge MassarellaDate 1 August 2025
JUDGMENT
[1]the Claimant’s application for interim relief succeeds.
REASONS
The law
[1]The Claimant was dismissed on 12 March 2025. She presented her case on 18 March 2025. The claim form contains a claim of automatically unfair dismissal for whistleblowing (s.103 Employment Rights Act 1996). The Claimant claimed interim relief.[2]By letter dated 3 July 2025, the Tribunal acknowledged the application for interim relief and listing today’s hearing.
The hearing
[3]I had a separate bundle of documents from each party, draft ET3s both in this case and in the Yilmaz litigation (for which see below), a witness statement from the Claimant but none from the Respondent, helpful written submissions from Mr O’Keeffe, supported by a bundle of authorities. I did not hear oral evidence.[4]I am grateful to both advocates for their assistance in navigating the material. The volume of material before me meant that I was not able to give an oral decision on the day. I reserved my judgment and deliberated in chambers on a further day.
The law
[5]By section 129(1) of the Employment Rights Act: 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 section 103A […][6]S.103A ERA provides that where the sole or principal reason for the dismissal is that an employee has made a public interest disclosure, the dismissal is automatically unfair.[7]There is an important distinction between whistleblowing detriment cases, where it is sufficient that the disclosure is a material factor in the detrimental treatment, and dismissal cases, where it must be the sole or principal reason.[8]If the application succeeds, the Tribunal shall order reinstatement. If the employer is not willing to do so, or the employee reasonably objects to reengagement on particular terms, the Tribunal will make a continuation of contract order, that the employer is to treat the employee as continuing in employment from the date of termination up to determination or settlement of the complaint (s.130 ERA). The Tribunal must specify in the order the amount which is to be paid by the employer to the employee by way of pay in respect of each normal pay period.[9]What is meant by ‘likely’ to succeed is clarified in Taplin v Shippam Ltd [1978] ICR 1068. It means: ‘a greater likelihood of success in his main complaint than either proving a reasonable prospect or a 51 per cent. probability of success and that an industrial tribunal should ask themselves whether the employee had established that he had a “pretty good” chance of succeeding in his complaint of unfair dismissal.’[10]This formulation was affirmed in Dandpat v University of Bath (2009) UKEAT/0408/09/LA, where it was said: ‘there were good reasons of policy for setting the test comparatively high… if relief is granted the respondent is irretrievably prejudiced because he is obliged to treat the contract as continuing, and pay the claimant, until the conclusion of proceedings: that is not a consequence that should be imposed lightly.’[11]A ‘good arguable case’ is not enough (Parsons v Airbus UKEAT/0023/16/JOJ4 March 2016).[12]The Tribunal must also be satisfied that the Claimant is likely (in the same sense) to successfully defeat any argument advanced by the Respondent which would be fatal to the success of the claim, including a jurisdictional argument that the Claimant did not have the necessary status as an employee to bring the claim (Al Qasimi v Robinson, UKEAT/0283/17, 21 December 2017) at [7, 58 and 71].[13]The task of the Tribunal hearing an interim relief application is (London City Airport v Chacko [2013] IRLR 610): ‘to make an expeditious summary assessment by the first instance employment judge as to how the matter looks to him on the material that he or she has… doing the best he or she can with the untested evidence advanced by each party’.[14]By rule 94 of the Employment Tribunal Procedure Rules 2024, the Tribunal must not hear evidence on an application for interim relief unless it directs otherwise.[15]The hearing should be conducted as a Preliminary Hearing within Rules 52 to 54. The proper approach is as follows (Parsons at para 8): ‘On hearing an application under section 128 the Employment Judge is required to make a summary assessment on the basis of the material then before her of whether the Claimant has a pretty good chance of succeeding on the relevant claim. The Judge is not required (and would be wrong to attempt) to make a summary determination of the claim itself. In giving reasons for her decision, it is sufficient for the Judge to indicate the “essential gist of her reasoning”: this is because the Judge is not making a final judgment and her decision will inevitably be based to an extent on impression and therefore not susceptible to detailed reasoning; and because, as far as possible, it is better not say anything which might pre-judge the final determination on the merits’. Protected disclosures[16]A protected disclosure is a qualifying disclosure made by a worker in accordance with any of sections 43C to 43H. A qualifying disclosure is defined by section 43B, as follows: (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— […] (b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject, […][17]In Williams v Michelle Brown AM, UKEAT/0044/19/OO at [9], HHJ Auerbach identified 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 sub-paragraphs (a) to (f). Fifthly, if the worker does hold such a belief, it must be reasonably held.’[18]In Norbrook Laboratories (GB) Ltd v Shaw [2014] ICR 540, the EAT held that two or more communications taken together may amount to a qualifying disclosure even if, taken on their own, each communication would not.[19]Linden J. held in Twist DX Ltd that the belief must be as to what the information ‘tends to show’, which is a lower hurdle than having to believe that it ‘does show’ one of more of the specified matters. The fact that the whistleblower may be wrong is not relevant, provided his belief is reasonable (at [66]). There is no rule that there must be a reference to a specific legal obligation and/or a statement of the relevant obligations or, alternatively, that the implied reference to legal obligations must be obvious, if the disclosure is to be capable of falling within section 43B(1)(b). Indeed, the cases establish that such a belief may be reasonable, despite the fact that it falls so far short of being obvious as to be wrong (at [95]).[20]In Chesterton Global Ltd v Nurmohamed [2018] ICR 731 the Court of Appeal held that while the worker must have a genuine (and reasonable) belief that the disclosure is in the public interest, that does not have to be his or her predominant motive in making it (at [30]). Employment status[21]S.230 ERA, so far as relevant, provides:(1) In this Act "employee" means an individual who has entered into or works under (or, where the employment has ceased, worked under) a contract of employment.(2) In this Act "contract of employment" means a contract of service or apprenticeship, whether express or implied, and (if it is express) whether oral or in writing. […][22]The definition of employee in s.230(1) ERA turns on the meaning of the phrase ‘contract of service’ in s.230(2) which, impliedly, is to be contrasted with a ‘contract for services’.[23]The usual starting-point is the passage in Ready Mixed Concrete (South East) Ltd v Minister of Pensions and National Insurance [1968] 2QB 497 at 515, in which MacKenna J. said: ‘A contract of service exists if these three conditions are fulfilled.(i) The servant agrees that, in consideration of a wage or other remuneration, he will provide his own work and skill in the performance of some service for his master.(ii) He agrees, expressly or impliedly, that in the performance of that service he will be subject to the other's control in a sufficient degree to make that other master.(iii) The other provisions of the contract are consistent with its being a contract of service. I need say little about (i) and (ii). As to (i). There must be a wage or other remuneration. Otherwise there will be no consideration, and without consideration no contract of any kind. The servant must be obliged to provide his own work and skill. Freedom to do a job either by one's own hands or by another's is inconsistent with a contract of service, though a limited or occasional power of delegation may not be: see Atiyah's Vicarious Liability in the Law of Torts (1967) pp. 59 to 61 and the cases cited by him. As to (ii). Control includes the power of deciding the thing to be done, the way in which it shall be done, the means to be employed in doing it, the time when and the place where it shall be done. All these aspects of control must be considered in deciding whether the right exists in a sufficient degree to make one party the master and the other his servant. The right need not be unrestricted.’ […] I can put the point which I am making in other words. An obligation to do work subject to the other party's control is a necessary, though not always a sufficient, condition of a contract of service. If the provisions of the contract as a whole are inconsistent with its being a contract of service, it will be some other kind of contract, and the person doing the work will not be a servant. The judge's task is to classify the contract (a task like that of distinguishing a contract of sale from one of work and labour). He may, in performing it, take into account other matters besides control.’[24]As for the nature of the obligations, in Nethermere (St Neots) Ltd v Taverna [1984] ICR 612, Dillon LJ held (at p.634G): ‘For my part I would accept that an arrangement under which there was never an obligation on the outworkers to do work, or on the company to provide work, could not be a contract of service.’ Kerr LJ held (at p.629D): 'The inescapable requirement concerning the alleged employees however … is that they must be subject to an obligation to accept and perform some minimum, or at least reasonable, amount of work for the alleged employer.'[25]If there is sufficient mutuality of obligation that the contract might be one of employment/service, the next question which falls to be determined is control. Although not the sole means of identifying a contract of employment, control remains an essential element of the test. The question is not whether the employer controls the way the putative employee does the work, rather whether the employer can, under the terms of the contract, direct him/her in what s/he did (Wright v Aegis Defence Services (BVI) Ltd, UKEAT/0173/17/DM at [35]). That is distinct from showing that the employer controls the way that the employee does the work. Even an absence of day to day control may not be relevant, if the employer retains the ultimate contractual power to direct what work should be done (White v Troutbeck SA [2013] IRLR 949, CA).[26]As for the third element of the test in Ready-Mixed Concrete, there is no definitive list of the features of any agreement which point towards, or away from, its being a contract of employment. In Market Investigations Ltd v Minister for Social Security [1969] 2 QB 173, Cooke J. reviewed the primacy, or otherwise, of control and, having referred to authorities in the Privy Council, Court of Appeal and US Supreme Court, held (at p.184): ‘The observations of Lord Wright, of Denning L.J. and of the judges of the Supreme Court suggest that the fundamental test to be applied is this: "Is the person who has engaged himself to perform these services performing them as a person in business on his own account?" If the answer to that question is "yes," then the contract is a contract for services. If the answer is "no," then the contract is a contract of service. No exhaustive list has been compiled and perhaps no exhaustive list can be compiled of the considerations which are relevant in determining that question, nor can strict rules be laid down as to the relative weight which the various considerations should carry in particular cases. The most that can be said is that control will no doubt always have to be considered, although it can no longer be regarded as the sole determining factor; and that factors which may be of importance are such matters as whether the man performing the services provides his own equipment, whether he hires his own helpers, what degree of financial risk he takes, what degree of responsibility for investment and management he has, and whether and how far he has an opportunity of profiting from sound management in the performance of his task.’ Outline of the facts and assessment Employment status[27]The first issue the Tribunal will have to deal with is whether it has jurisdiction to hear the Claimant’s claims: the Respondent asserts that she was an independent contractor from May 2024 onwards.[28]There is no dispute that the Claimant was initially employed under a contract of employment which began on 1 May 2022. Her role was Programme Manager. For part of the time, much of the Claimant’s work was carried out on secondment to the GLA.[29]In around August 2023, funding was secured from an external funder for a project called The Phoenix Way (‘TPW’). It was assigned to the Claimant to deliver; the pay for this work was £2,600 per month gross. The Claimant’s evidence will be that she continued to perform her core policy and research role, alongside the TPW work, but accepted the TPW money as remuneration for all the work she did for the Respondent. She will say that she continued to work 35 hours a week for the Respondent.[30]I consider that an email of 21 August 2023 of 21 August 2023 from Ms Halliday to the Respondent’s finance officer is likely to support the Claimant’s case: ‘Tita [the Claimant] will be working 2 days per week for GLA, 6.5 days per month as National Lead for Phoenix Way, and the rest of the month as Program Manager for policy and research. We need to change her payslip to reflect all these and to charge the varied rates and hours to proper funders […] I leave it to you to compute the employers NI and pension contributions per month. Hi Tita, let us know what you think and if you have any suggestions. Basically, if you’re not working with TPW, your work is for Kanlungan, and I decided to target under Tudor Trust at the same rate as our managers at £18.19 per hour [emphasis added].’[31]The arrangement which Ms Halliday proposed would have meant an increase in pay to the Claimant; the Claimant appears to have declined this and indicated she was happy to accept the £2,600 per month to cover all her work. In her email of the same date, the Claimant explicitly referred to a wide range of other work she did for the Respondent, albeit she hoped in due course it could be passed to others.[32]The Claimant’s secondment to the GLA ended in May 2024, but that was only one of the three elements of her work described by Ms Halliday in the email I have quoted above. It is not disputed that the TPW work continued. The Claimant’s evidence is that she continued to do the remaining elements of her role for 35 hours at £2,600 per month.[33]There is evidence that Ms Halliday sought to terminate the contract of employment in around March 2024. The Claimant raised a grievance. There was an investigation by Peninsula in April 2024, which found, inter alia, that the Claimant ‘is employed as a Programme Manager…the contract does not specify what project SC is working on’.[34]In late 2024 the Respondent stopped paying the Claimant on a PAYE basis and began to pay her gross. The usual reason for such a change would be a change of status. The Claimant challenged the decision by way of an earlier Employment Tribunal case, in which it appears that the question of employment status was in issue. The Respondent settled that case on 27 November 2024. Thereafter it reverted to paying the Claimant on a PAYE basis. Remuneration paid in that way is an indicator (albeit not determinative) of employment status.[35]There was no evidence before me that the Claimant’s contract of employment with the Respondent (as opposed to her secondment to the GLA) was terminated, either by resignation or dismissal, before March 2025.[36]There does not appear to be any suggestion that the Claimant was not obliged to perform her work personally. I think it unlikely in view of Ms Halliday’s email above that the Tribunal will find that there was an absence of the irreducible minimum of mutual obligation necessary to create a contract of service.[37]As for control, although the TPW work was funded by an external body, I think there is a good chance that the Tribunal will find that that the Respondent exercised control over the Claimant by suspending, disciplining and dismissing her. It treated her as an employee throughout the process. The letter of dismissal expressly refers to the termination of her contract of employment and gives reasons for it which apply only in the context of employment: ‘your conduct is in fundamental breach of your contractual terms, which evocatively destroys the trust and confidence necessary to continue the employment relationship’.[38]Although the label which the parties put on the relationship is not determinative, it is a relevant indicator, all the more so against the background of earlier disputes about status, from which the Respondent appears to have retreated.[39]In view of all these factors, I have concluded that the Claimant has a pretty good chance of persuading the Tribunal at the final hearing that she remained the Respondent’s employee at all times, up to her dismissal, notwithstanding the fact that the work she performed changed over time, as did the way it was funded and her rate of pay. Background to the alleged disclosures and dismissal[40]Between 4 and 7 November 2024 Ms Halliday dismissed five other employees. The first Claimant was Ms Yilmaz; I will refer to them as ‘the Yilmaz Claimants’. The present case shares much of the same factual background, which I attempt to summarise below as neutrally as possible. I note that I had more information before me than EJ Park did at the hearing before her, including draft ET3s in both sets of proceedings.[41]On 18 September 2024, Ms Yilmaz sent an email to Ms Halliday, which was copied to other people, including three of the Yilmaz Claimants and the Claimant in this case.[42]The email raised ‘a matter of serious concern regarding a potential misappropriation of funds within our charity’. This related to a recent payment of £2,000 to an external organisation to submit an application on behalf of an individual service user. Ms Yilmaz alleged that this was contrary to the Respondent’s practice and/or policy, which was not to pay the costs of individual applications; she further alleged that that the manager who approved the payment and the service user are ‘known in the community as very good friends with each other’. Ms Yilmaz explicitly identified this as a whistleblowing concern.[43]On 24 September 2024, Ms Halliday wrote to Ms Yilmaz to say that she had reviewed the transaction in question. She was satisfied that it was a legitimate transaction, which was approved by her; she explained why she considered there was no wrongdoing. She observed that Ms Yilmaz’s comments about conflict of interest might be regarded as malicious. She stated that there was no ground for an investigation and concluded that the matter was closed.[44]Ms Halliday reiterated that the matter was closed in a further, much briefer, email of 25 September 2024. On 27 September 2024 Ms Yilmaz appealed the matter to the trustees.[45]On 1 October 2024, the Claimant wrote to trustees expressing strong concern about Ms Halliday’s response and asking them to investigate.[46]On 4 October 2024, the trustees responded to Ms Yilmaz, stating that they took whistleblowing allegations seriously, especially when they related to misappropriation of funds; they understood the importance of protecting staff from retaliation. The trustees said that they would look into appointing an independent investigator through Peninsula to ensure a fair and impartial process was followed.[47]An organisation called Roots HR later produced a report, which was sent to Ms Yilmaz on 28 February 2025. Mr O’Keeffe (Counsel for the Respondent) informed me that Ms Yilmaz was approached to speak to Roots HR in December 2024, by which time Ms Halliday had already dismissed her.[48]On 8 October 2024, a collective grievance was raised by the Yilmaz Claimants and the Claimant in this case (who helped to draft it) and one other person. It was sent to the Respondent’s trustees by email. It repeated the allegation of misappropriation of funds relating to the payment to thousand pounds and added an allegation that the payment was misrepresented internally to cover up what had happened. It also included other allegations, including an allegation of sexual harassment and breach of safeguarding by another manager. The letter concluded by warning that they may escalate the matter to the Charity Commission and initiate Tribunal proceedings.[49]Between 4 and 7 November 2024, Ms Halliday dismissed all five of the Yilmaz Claimants. Four of them were sent almost identical letters, but with different reasons for termination. They were all informed that their employment would terminate immediately and that they would be paid in lieu of notice. The fifth Claimant was dismissed by way of a brief email. All the Yilmaz Claimants had less than two years’ continuous service, a fact which was referred to in their termination letters. The Claimant in this case was the only person with the necessary qualifying service to bring an ordinary unfair dismissal claim.[50]EJ Park considered (para 59 of her judgment) that it appeared that the decision to dismiss the Yilmaz Claimants ‘came out of the blue’. Mr O’Keeffe submitted that that is no longer sustainable. He points to the Respondent’s draft ET3 in the Yilmaz litigation, which asserts that there were pre-existing disciplinary and capability concerns in each case. If it is right Ms Halliday harboured serious concerns about five employees, on which she had not previously acted, I think there is a good chance that the Tribunal will consider it all the more striking that she elected to act on them (by dismissing the employees without process) less than a week after they had participated in a collective grievance, which they characterised as whistleblowing.[51]On around 6 November 2024, the Claimant was involved in reviewing and amending three draft letters, one to the Charity Commission and two to organisations which funded the Respondent (‘the November letters’). The letters were subsequently sent, it would appear at some point in November 2024, and in any event before the Claimant’s dismissal.[52]All three letters repeat the information/allegations about misappropriation of funds. They also contain information/allegations about the ‘mass dismissal’ of staff, said to be in retaliation for whistleblowing in the collective grievance.[53]On 7 November 2024, the Claimant was locked out of her office and her work emails without explanation.[54]On 10 and 11 November 2024, the Yilmaz Claimants issued proceedings in the Employment Tribunal.[55]On 12 November 2024, Ms Halliday suspended the Claimant.[56]On 22 November 2024, a letter was sent to nine staff members, included those who had already been dismissed, requesting their attendance at a hearing concerning the collective grievance. They declined to attend.[57]At a hearing on 4 December 2024, EJ Park granted the Yilmaz Claimants’ application for interim relief. That judgment is not binding on me, but it may be persuasive.[58]On 10 December 2024, the Claimant was informed of disciplinary allegations against her and invited to a hearing which was held on 18 December 2024. The allegations included an allegation which related to the circulation of information in the November letters.[59]In its report of February 2025 into the collective grievance, Roots HR agreed that there was a conflict of interest in Ms Halliday investigating and responding to the original complaint by Ms Yilmaz; that the grant money was restricted; that it had not previously been used in this way; but because it was in line with both the purpose of the organisation and the purpose of the grant, it did not amount to misappropriation of funds; the decision to use the funds was not linked to a personal relationship between the service user and the manager.[60]On 12 March 2025, the Claimant was provided with a report on the disciplinary allegations and dismissed for gross misconduct by Ms Halliday. She brought her Tribunal claim on 18 March 2025.[61]The seventh person who signed the October collective grievance was also dismissed. Protected disclosures[62]I consider that there is a good chance that the Tribunal will conclude that, in participating in the collective grievance, the Claimant reasonably believed that she was disclosing information which tended to show a misappropriation of charitable funds. I think there is a good chance that the Tribunal will consider that it was reasonable for her to believe that the use of charitable grant money for purposes for which it had not previously been used, in circumstances where she considered the use of funds was improperly influenced by a decisionmaker’s personal connection with a service-user, would tend to show a breach of a legal obligation, even if she did not identify the specific legal breach. There was no requirement to do so; I remind myself of the guidance of Linden J in Twist (above at para 19).[63]I also consider that there is a good chance of the Tribunal finding that the Claimant made the disclosure in the public interest. The proper use of charitable funds is obviously matter of public interest. It is immaterial if the Claimant had an ulterior motive (see above at para 19).[64]The Claimant will also seek to rely on the three November letters, for which on the Respondent’s own case she was dismissed. There is considerable emphasis in the dismissal letter on the November letters in the dismissal letter, emphasising their damaging effect on the Respondent’s reputation, without any acknowledgment of their potential status as protected disclosures.[65]The Claimant was a litigant in person when she presented her case. The precise identification of the protected disclosures relied on in a whistleblowing case is a matter which is often clarified at the preliminary hearing stage (and sometimes later), I think there is a good chance that the Claimant will be permitted to rely on the letters as alleged qualifying disclosures for the purposes of her claim. If she is required to make a formal application to amend, I think there is a good chance that a Judge would conclude that the balance of hardship and injustice favours her.[66]The Charity Commission is a prescribed person; the funders are not. Because none of them are the Claimant’s employer, the hurdle is higher for her to show that she made protected disclosures.[67]I consider that there is a good chance that the Tribunal will conclude that the Claimant reasonably believed that the information disclosed, and the allegation of misappropriation of funds was substantially true (s.43F(b)(ii) in relation to the Charity Commission and s.43G(b) Employment Rights Act 1996 in relation to the funders). The Roots HR report later upheld key factual elements of the original allegation. I think there is a good chance that the Tribunal will conclude that the fact that Roots HR concluded that there was no misappropriation of funds does not mean that it was unreasonable for the Claimant to have believed that there was.[68]There was nothing before me to suggest that the Tribunal will find that the Claimant made the disclosures for purposes of personal gain (s.43G(c) ERA). The Claimant had previously made a disclosure of substantially the same information to her employer (s.43G(2)(b) ERA).[69]I think that there is a good chance that the Tribunal will find that it was reasonable in the circumstances for the Claimant to make the disclosures to the funders, given the following: 69.1. Ms Halliday had declined to order an investigation into Ms Yilmaz’s concerns and twice stated that the matter was ‘closed’. 69.2. The Trustees had reassured Ms Yilmaz at the beginning of October 2024 that her concerns about misappropriation of funds would be independently investigated and that there would be no retaliation. It would appear that no steps had been taken to initiate a process by the time the November letters were drafted. 69.3. By the date on which the Respondent purported to commence a process to deal with the collective grievance (22 November 2024), six of the seven authors of the collective grievance had already been dismissed and the seventh had been suspended.[70]Similarly, I think there is a good chance that the Tribunal will conclude that, in disclosing information about the retaliatory dismissal of staff, the Claimant was reasonably entitled to believe that she was disclosing information which tended to show a breach of a legal obligation (the statutory protection of whistleblowers from retaliation). I think there is a good chance the Tribunal will conclude that she reasonably believed that the information was substantially true (for the reasons I have already given) and that disclosing it was in the public interest. I also think there is a good chance that the Tribunal will conclude that she acted reasonably in disclosing the information to non-prescribed persons (see my previous paragraph). Causation[71]Turning to the final limb of the test, I considered whether there was a pretty good chance that the Tribunal would conclude that the fact that the Claimant had made any or all of the protected disclosures was the sole or principal reason for her dismissal.[72]I have concluded that there is a good chance that it will. There is a significant difference between the Claimant’s case and that of the Yilmaz Claimants, in that the latter were summarily dismissed without due process within a very short period of the collective grievance, while the Claimant was put through a procedure.[73]Ms Halliday was the ultimate decision-maker. She will no doubt say that she was acting on the recommendation of Peninsula. EJ Park has already concluded that there is a pretty good chance that the Tribunal will find that she retaliated against the Yilmaz Claimants for making protected disclosures. I agree with the Judge Park’s view. I consider that, while the letter of dismissal covers many issues, it places considerable emphasis on the fact that the Claimant persisted in her allegations about misappropriation of funds and, in particular, that she took those concerns outside the organisation, adding to it an allegation of retaliation. I consider that there is a pretty good chance that the Tribunal will conclude that that, even if there were other reasons for the dismissal, the Claimant’s persistence in maintaining her allegation was the principal reason.[74]I recognise that the Claimant has numerous factual and legal obstacles to overcome. I have assessed as good her chances of overcoming each of them individually. Standing back and assessing her chance of overcoming all of them (which she must), I still consider that she has a pretty good chance of doing so.[75]For all these reasons, I grant the Claimant application for interim relief.[76]It was agreed at the hearing that, if I ordered interim relief, the Respondent would have two working days from the date on which this judgment is sent to the parties to notify the Claimant and the Tribunal as to whether it agrees to reinstate/re-engage the Claimant.[77]If it declines to do so, the parties agree that the continuation order should be in the amount of £2,600 gross per month. FURTHER JUDGMENT ON INTERIM RELIEF An order for interim relief having been made pursuant to s.128 Employment Rights Act 1996 (‘ERA’) by a judgment with written reasons sent to the parties on 22 July 2025, the further judgment of the Tribunal is that: -
The law
[1]the Respondent being unwilling to reinstate or re-engage the Claimant, the Tribunal orders, under s.129(9)(b) ERA, that the Claimant’s contract of employment shall continue in force:a. for the purposes of pay or any other benefit derived from the employment, seniority, pension rights and other similar matters; andb. for the purpose of determining for any period for which the Claimant has been continuously employed.[2]From the date of the date of the termination of the Claimant’s employment (12 March 2025) to the determination or settlement of the claim for automatically unfair dismissal, the Respondent shall pay the Claimant £2,600 gross per month. The necessary deductions shall be made for tax and national insurance.[3]Payment shall be made on the last day of each month. The first payment shall be made on 31 August 2025; it shall include the arrears of pay.[1]By a reserved judgment sent to the parties on 22 July 2025, I granted the Claimant’s application for interim relief.[2]It was agreed at the hearing that, if I ordered interim relief, the Respondent would have two working days from the date on which the judgment was sent to the parties to inform the Tribunal whether it agreed to reinstate/re-engage the Claimant. If it did not, the parties agreed that the continuation order should be in the amount of £2,600 per month. That is the gross figure.[3]The Respondent wrote to the Tribunal on 24 July 2025 as follows: ‘Further to EJ Massarella’s interim relief order in favour of the Claimant, I write on behalf of the Respondent to confirm that they are not at present in a position to offer reinstatement or reengagement. EJ Massarella is therefore required to make a continuation of contract order in the sum indicated (which is a gross sum). It is the Respondent’s contention that the order should however be for a nil duration, given that the Claimant would in any event have been dismissed by reason of redundancy following the conclusion of The Phoenix Way project, as the “policy and research” work referred to by EJ Massarella was so insubstantial that no salary could have been justified beyond the Respondent’s withdrawal from TPW project from 31 October 2024, still less when the project was closed entirely by the Global Fund for Children.’ The Respondent did not ask for a further hearing.[5]I ordered the Claimant to lodge a written response, which she did by email dated 28 July 2025 as follows: ‘Further to the Respondent’s email of the 24th July 2025, I strongly reject the contention of the Respondent that it should be of nil duration. I believe that the payment of my Interim Relief should be from the date of my dismissal 12 March 2025 until the determination of my case at the ET, for unfair dismissal. The respondent has first of all repeatedly and falsely tried to maintain that I was a consultant even though I had a permanent contract and was being paid as an employee on the payroll each month. The tribunal dismissed these claims. My employment continued after the Respondent unilaterally ended the Phoenix way project on 31 October and my duties switched to other roles doing core work for the Respondent, which continue to be required in the organisation. The respondent is now trying to evade the interim relief payments awarded by the tribunal by claiming that I was indeed employed but that “I would have been dismissed” in the future because “the Phoenix Way project was closed entirely by the Global Fund for Children”. It should be noted that the Global Fund for Children (GFC) did not close the project. They were pleased with its progress and wanted it to continue. GFC were keen to make more funds available for a further extension of the project. It might be noted that the Respondent did not actually return the funds to the funder on 31 October 2024. Nor had they done so by the 16 July 2025 interim relief hearing even though they told the tribunal they had done so. The remaining funds were only returned to the funder on 24 July, the day they wrote their letter to the Tribunal, which was after the court ruling had been made against the respondent for interim relief. The returning of the funds was clearly done after I, and the other 5 colleagues in Yilmaz and the others’ case were all dismissed. They have created the situation in which there is no fund available after the dismissals. The Respondent’s decision to end the Phoenix way project on 31 October 2024, despite the readiness of the funder to continue funding, was unprecedented in the history of the Respondent’s work. I contend that this was part of their retaliatory behaviour against me for my protected disclosure contained in letters between September – November 2024. I contend that if any problem has been created by the ending of the Phoenix Way Project by the Respondent, then this is entirely a consequence of their own actions. I very much hope that the tribunal will not allow the Respondent to evade the decision and intention of the Employment Tribunal and deny their request that the period of interim relief be nil.’[6]The Respondent’s submission that the continuation order should be of nil duration consists of a bare assertion, lacking in detail and unsupported by any evidence. I find the detailed account given by the Claimant in her email more persuasive.[7]On the basis of the evidence before me, I consider that there is a pretty good chance that the Tribunal will find at the final hearing that the termination of the Phoenix Way Project was part of the Respondent’s retaliation against the Claimant for making protected disclosures. In view of that, I think there is a pretty good chance that the Tribunal will go on to find that, had there been no retaliation, the Claimant would have continued to be employed by the Respondent under her permanent contract of employment beyond her dismissal and beyond the determination of this interim relief application.[8]Consequently, I make a continuation order in the agreed gross amount of £2,600 per month from the date of the Claimant’s dismissal (12 March 2025) to the date of the final determination of the Claimant’s case by the Employment Tribunal. Although I was not addressed on the point, it seems to me logical that tax and national insurance must be deducted at source, as they would have been had the Claimant remained in employment. Approved by:[1]The judgment in which I held that the Claimant’s application for interim relief succeeded was sent to the parties on 22 July 2025 (‘the first judgment’); I refer to paragraphs in that judgment as J1/10 etc.[2]A further judgment, containing the continuation order, was completed on 1 August 2025 and passed to the Tribunal administration for urgent promulgation the same day (‘the second judgment’). It was not sent to the parties until 13 August 2025. I refer to paragraphs in that judgment as J2/10 etc.[3]Rule 69 of the 2024 Rules required any application for reconsideration of the first judgment to be submitted by 5 August 2025. An application for reconsideration of the first judgment was submitted on 6 August 2025 at 21:21. An application for an extension of time was submitted on 8 August 2025, the explanation being that an error had been made.[4]Both applications also contained applications on behalf of the Respondent for the revocation/variation of the orders on interim relief (‘the revocation applications’), pursuant to s.131 Employment Rights Act 1996.[5]The effect of subsection s.131(2) ERA is that, when such an application is made, a hearing must be listed as soon as practicable after receiving the application.[6]Having reviewed the reconsideration applications on the papers, I did not consider that there was no reasonable prospect of the judgments being varied or revoked. Consequently, I did not reject them under rule 70(2).[7]Given that the revocation applications had to be dealt with at a hearing in any event, I decided to list a hearing to deal with all outstanding matters arising out of these applications: 7.1. whether, exercising the Tribunal’s general discretion under rule 5, time should be extended for either or both of the reconsideration applications; 7.2. if time is extended, whether it is in the interests of justice to vary or revoke either of the judgments; and, in any event, 7.3. whether either or both of the judgments should be varied or revoked on the ground of a relevant change of circumstances since the making of the orders.
The law
[8]Under rule 68 of the Employment Tribunal Procedure Rules 2024, the Tribunal has a power to reconsider a judgment where it is necessary in the interests of justice to do so.[9]In Outasight VB Ltd v Brown UKEAT/0253/14 the EAT held (at [46-48]) that the ground for reconsidering Judgments (the interests of justice, rule 68) did not represent a broadening of discretion from the provisions of Rule 34 contained in the replaced 2004 rules. HHJ Eady QC (as she then was) explained that the previous specified categories under the old rules were only examples of where it would be in the interests of justice to reconsider. The 2013 rules remove the unnecessary specified grounds, leaving only what was in truth always the fundamental consideration: the interests of justice. This means that decisions under the old rules remain pertinent under the (then new) 2013 rules. The same must apply to the 2024 rules.[10]The key point is that it must be in the interests of justice to reconsider a judgment. That means that there must be something about the case that makes it necessary to go back and reconsider, for example a new piece of evidence that could not have been produced at the original hearing or a mistake as to the law. It is not the purpose of the reconsideration provisions to give an unsuccessful party an opportunity to reargue his or her case. If there has been a hearing at which both parties have been in attendance, where all material evidence had been available for consideration, where both parties have had their opportunity to present their evidence and their arguments before a decision was reached and at which no error of law was made, then the interests of justice are that there should be finality in litigation. An unsuccessful litigant in such circumstances, without something more, is not permitted to simply reargue his or her case, to have ‘a second bite at the cherry’ (per Phillips J in Flint v Eastern Electricity Board [1975] IRLR 277).[11]The expression ‘necessary in the interests of justice’ does not give rise to an unfettered discretion to reopen matters. The importance of finality was confirmed by the Court of Appeal in Ministry of Justice v Burton and anor [2016] EWCA Civ 714 in July 2016 where Elias LJ said that: ‘the discretion to act in the interests of justice is not open-ended; it should be exercised in a principled way, and the earlier case law cannot be ignored. In particular, the courts have emphasised the importance of finality (Flint v Eastern Electricity Board [1975] ICR 395) which militates against the discretion being exercised too readily; and in Lindsay v Ironsides Ray and Vials [1994] ICR 384 Mummery J held that the failure of a party's representative to draw attention to a particular argument will not generally justify granting a review.’[12]In Liddington v 2Gether NHS Foundation Trust EAT/0002/16 the EAT, per Simler P, held at paragraph 34 that: ‘a request for reconsideration is not an opportunity for a party to seek to re- litigate matters that have already been litigated, or to reargue matters in a different way or by adopting points previously omitted. There is an underlying public policy principle in all judicial proceedings that there should be finality in litigation, and reconsideration applications are a limited exception to that rule. They are not a means by which to have a second bite at the cherry, nor are they intended to provide parties with the opportunity of a rehearing at which the same evidence and the same arguments can be rehearsed but with different emphasis or additional evidence that was previously available being tendered.’[13]Under s.130(3) ERA (and subject to ss.130(4) to (6) ERA), the amount to be specified in the continuation order is that ‘which the employee could reasonably have been expected to earn by way of pay’ in respect of each normal pay period or part of a pay period between the date of dismissal and the determination or settlement of the complaint.[14]By s.130(7) ERA, the amount which an employee could reasonably be expected to earn ‘shall be determined as if he had not been dismissed’.[15]S.131 Employment Rights Act 1996, provides that Application for variation or revocation of order.(1) At any time between— (a) the making of an order under section 129, and (b) the determination or settlement of the complaint, the employer or the employee may apply to an [employment tribunal] for the revocation or variation of the order on the ground of a relevant change of circumstances since the making of the order.(2) Sections 128 and 129 apply in relation to such an application as in relation to an original application for interim relief except that, in the case of an application by the employer, section 128(4) has effect with the substitution of a reference to the employee for the reference to the employer. The application under s.131 ERA[16]The application under s.131 ERA can only succeed if the Respondent can identify ‘a relevant change of circumstances since the making of the order’. The test for reopening the decision is narrower than the ‘interests of justice’ test in a reconsideration application under the 2024 Rules.[17]I agree that these provisions should be construed purposively. I remind myself that the purpose of the interim relief provisions is to provide a summary procedure under which the Tribunal makes a preliminary assessment of the strength of the Claimant’s case based on the materials placed before the judge at the hearing.[18]There is little authority on the meaning of ‘change of circumstances.’ The IDS handbook (volume 15, chapter 18, paragraph 18.39) suggests: ‘this would typically happen if the employee has found new employment or has decided to leave the job market by, for example, starting a full-time course of further education’. I agree insofar as I consider that ‘circumstances’ must refer to a change in the practical state in which the claimant or respondent find themselves after the order for interim relief has been made, as opposed to a change in the state of the litigation.[19]Because of the requirement to conduct the hearing urgently, it is inevitable that one or other party is likely be able to articulate its case better later in the proceedings. In my judgment, that is not a relevant change of circumstances. If it were, most interim relief decisions would have to be reconsidered, since most of them take place in the absence of a fully pleaded defence. To find otherwise would run counter to the purpose of the provisions.[20]The Respondent seeks to persuade me that the fact that the Claimant has still not applied formally to amend her case to rely on the November disclosures is a relevant change of circumstances. That argument fails because there has not been a change of circumstances; the observations in the paragraph also apply.[21]As for the second judgment, there is no suggestion that the circumstances in relation to the salary to which the Claimant was entitled have changed since the making of the order; the Respondent’s case is rather that I made the wrong decision, and took into account a n argument which the Respondent did not have an opportunity to deal with, and that it is in the interests of justice to revisit it. I deal with that argument in the reconsideration section of this judgment below.[22]Because I am not satisfied that there has been any relevant change of circumstances since the making of the order, the application under s.131 ERA is refused. The application to reconsider the order for interim relief under the 2024 Rules Time limits[23]Mr Maini-Thompson (Counsel for the Claimant) accepted that the second application was, in fact, in time. He made no objection to the one-day extension in respect of the first application. That was a sensible and pragmatic position to adopt: the prejudice to the Respondent of not allowing the extension would be particularly acute, given that the application relates to a continuation order, which might be in place for many months, requiring substantial payments of salary which could not be recouped if the Claimant’s case failed at trial. The application in relation to the first judgment Employment status[24]I set out my conclusion as to employment status at J1/27 onwards. I concluded at J1/39: ‘In view of all these factors, I have concluded that the Claimant has a pretty good chance of persuading the Tribunal at the final hearing that she remained the Respondent’s employee at all times, up to her dismissal, notwithstanding the fact that the work she performed changed over time, as did the way it was funded and her rate of pay.’[25]I had regard to the documents I was taken to, in which the Claimant described some of her work for the Respondent as being done on a voluntary basis. I was not persuaded that they were likely to lead to a conclusion that she was not an employee at the material time, essentially for the reasons I gave in my judgment. 25.1. The Claimant was employed under a contract of employment, which began on 1 May 2022 (J1/28). There was an attempt by Ms Halliday to terminate it in around March 2024, which failed (J1/33). 25.2. In late 2024 there was an attempt by the Respondent to assert a change of status (including stopping paying the Claimant on a PAYE basis), which failed (J1/34). 25.3. There was no evidence before me that the Claimant’s contract of employment with the Respondent (as opposed to her secondment to the GLA) was terminated, either by resignation or dismissal, before March 2025 (J1/36). 25.4. I concluded that it was pretty likely that the Tribunal would conclude that the Respondent exercised control over the Claimant by suspending, disciplining and dismissing her (J1/37).[26]I will return to the question of whether the Claimant was doing any paid work in addition to the TPW project when I reconsider the second judgment.[27]Mr O’Keeffe (Counsel for the Respondent) was unable to identify when or how the contract of employment was terminated prior to March 2025, other than by reminding me that the Claimant said that she had ‘resigned’ from the GLA role. I acknowledged that in my judgment at J1/32: ‘The Claimant’s secondment to the GLA ended in May 2024, but that was only one of the three elements of her work described by Ms Halliday in the email I have quoted above [at J1/30]. It is not disputed that the TPW work continued.’[28]There was no suggestion - at either hearing - that the Claimant was doing the TPW work as a volunteer.[29]If the Respondent is right that there was no residual paid work which the Claimant was doing after 31 October 2024, it might arguably have dismissed her for redundancy at that point; it did not do so.[30]Nothing the Respondent has said in its application has persuaded me that the Tribunal is pretty likely to find that the Claimant’s contract of employment was terminated before 12 March 2025. The November disclosures[31]I do not accept that, with one exception, I proceeded improperly, or made errors, in my assessment of the November disclosures (J1/64 onwards). The Respondent was not ambushed by this: the Claimant had referred to it in her witness statement for the hearing. I was entitled to consider that there was a good chance she would be permitted to rely on them for the reasons I gave at J1/65. I am not persuaded by the Respondent that I acted improperly (in the context of a summary assessment) in referring one of the leading authorities in this area of law (Twist) without alerting them to the fact that I would do so. There is nothing novel in that case; it is often relied on because it helpfully contains a comprehensive review of earlier authorities.[32]My assessment of the likelihood of the Claimant meeting the tests in s.43G is criticised. It is right that I focused on two matters contained in the November letters (misappropriation and retaliatory dismissals). It was suggested that I was required also to deal with the other allegations contained in them, and to consider whether the Claimant also reasonably believed that the information contained was substantially true. I agree that I did not do so.[33]I asked if there was authority as to whether I was required to do. Mr O’Keeffe referred me to Korashi v Abertawe Bro Morgannwg University Local Health Board [2012] IRLR 4. In which the EAT (HHJ McMullen) touched on the matter, albeit obiter. The qualifying disclosure in that case consisted of complaints made by the claimant, a doctor, to the General Medical Council about the professional conduct and competence of a fellow doctor. On the facts of the case, it was plain that the claimant did not believe all the allegations that he made against the colleague, but he relied on the ‘gist’ of the allegations. Although the EAT did not, in the end, need to decide this point, it stated that it would have held that S.43G was not satisfied. It pointed out that the information disclosed must, in the reasonable belief of the discloser, be substantially true, and that while there is no obligation to make allegations, if the disclosure does make allegations, then they too must be substantially true in the reasonable belief of the person making them. In the EAT’s view, it would not be sufficient to show that a matter was believed to be substantially true when a number of the allegations were not believed. It held at [64]: ‘The dispute between the parties is as to whether it is sufficient that the gist of a complaint, here as to the competence of Mr A, qualifies as being substantially true or whether the information and each allegation must be reasonably believed to be true. Counsel say that there is no authority on this. The example given by Mr Wallington is of a disclosure made by scattergun which includes one point which qualifies under s43G and nine which do not. This he contends would not mean that each allegation is substantially true.’[34]Mr O’Keeffe understands the EAT to be saying that the claimant must believe that each and every allegation in a document which is said to contain protected disclosures is substantially true, if any of them are to qualify for protection.[35]I am not sure that is what the EAT is saying; however, if it is, I respectfully disagree. According to s.43F(1) ERA (and the equivalent in s.43G), when a disclosure is made to an external body: A qualifying disclosure is made in accordance with this section if the worker […] (b) reasonably believes – […] (ii) that the information disclosed and any allegation contained in it, are substantially true.’[36]A distinction must be made between the disclosure and the ‘envelope’ in which it is contained. It is not the document which is the ‘qualifying disclosure’ referred to in the statutory provision; the document is merely the envelope in which the individual disclosures are made; each disclosure must be scrutinised on its own terms to establish whether it satisfies the requirement in S.43F(1)(b)(ii). Tribunal judges spend many hours at preliminary hearings seeking to identify where in a document disclosures are said to be and then identifying the relevant statutory tests applicable to each disclosure (which may differ).[37]If that exercise were being conducted in the context of s.43F disclosure, each of the identified disclosures would be potentially ‘a qualifying disclosure’, provided that ‘the information disclosed and, any allegation contained in it, are substantially true’. We know from the authorities that a disclosure must consist of information; it may, but need not, also contain (or amount to) an allegation, sometimes more than one. If it does, then the Claimant must reasonably believe that the information and any allegation contained within that alleged disclosure, is substantially true; not all the information and all the allegations contained in the rest of the document, as Mr O’Keeffe suggests.[38]I agree with Mr O’Keeffe’s challenge to my judgment on one point: I did not deal with the requirement in s.43G that, in making a disclosure to the funders, the Tribunal must be satisfied that substantially the same disclosure had previously been made to the employer or to a prescribed person. I did not have evidence that the Claimant had made the disclosure about retaliatory dismissals to the Respondent (she may have done); and although she did make the disclosure to a prescribed person (the Charity Commission), I do not know whether it was made before, after or at the same time as the disclosure to the funders. Accordingly, I cannot assess the chance that the Tribunal will conclude that that disclosure to the funders (as opposed to the letter to the Charity Commission) was a qualifying protected disclosure.[39]However, it was not in dispute that she had made the disclosure about misappropriation of funds to the employer. On the basis of the material which was before me at either hearing, I am not satisfied that the Tribunal is likely to find that she made the disclosure for personal gain.[40]In any event, that does not affect my overall assessment of the chances of the Claimant succeeding in her claim of automatically unfair dismissal. I do not accept that my judgment at J1/71-74 should be read as indicating that my conclusion as to causation was confined to the November disclosures (both to the Charity Commission and to the funders) and did not include the collective grievance. Reading it as a whole, it is clear that I was treating the Claimant’s disclosures as closely connected with each other and cumulative, see: 40.1. my reference to the Claimant’s involvement in the collective grievance of 8 October 2024 (J1/48); 40.2. the Claimant’s involvement in the 6 November 2024 letters (J1/51) and the fact they repeated the information about misappropriation and added information about alleged retaliatory ‘mass dismissals’; 40.3. in the section on protected disclosures I considered both the collective grievance and the November letters (J1/62-70); 40.4. my contrasting of the fact that the Yilmaz claimants were ‘were summarily dismissed without due process within a very short period of the collective grievance, while the Claimant was put through a procedure’ which plainly contrasts the treatment of the signatories to the collective grievance.[41]I referred to both the collective grievance and the November letters when dealing with causation. I accept I could have been clearer in the language I used. My use of the term ‘persistent’ was intended as short-hand for the Claimant’s involvement in both disclosures. I take this opportunity to clarify that I consider there is a pretty good chance of the Tribunal finding that the principal reason for dismissal was the Claimant’s making of, and persistence in, the disclosures in both the collective grievance and the November letter to the Charity Commission.[42]In all the circumstances, I decline to vary or revoke the first judgment; it is confirmed. The application in relation to the second judgment[43]It is right that both parties said, in the context of a brief conversation at the end of the interim relief hearing, that, if an order for interim relief was made, the amount of any continuation order would be £2,600 per month. This was said at a point when the issue of the CCO had not yet arisen, because I had not yet made a decision as to whether the application for interim relief should succeed.[44]Mr O'Keeffe reminded me that, in the same conversation, he indicated that he thought it was unlikely that Respondent would accept reinstatement in circumstances where the TPW project on which the claimant worked had ended. Although I do not have a note of that, it accords with my recollection. Given that it was the Respondent’s case at the interim relief hearing (from which it did not resile) that the TPW work was the only paid work the Claimant was doing for the Respondent in the latter part of her employment, a concession that she should continue to be paid £2,600 would be surprising. I suspect a confusion may have arisen because that was what, as a matter of fact, she was being paid during her suspension (presumably on advice). I am satisfied that the indication given as to the figure was not sufficiently clear, unambiguous and unequivocal to amount to a formal concession, from which the Respondent requires permission to resile.[45]In any event, I specifically gave the Respondent an opportunity to take instructions and to make representations in writing as to the practical consequences of an order for interim relief. At that point neither party knew what the outcome of my assessment would be.[46]The Respondent duly made its written representations, which were as follows: ‘Further to EJ Massarella’s interim relief order in favour of the Claimant, I write on behalf of the Respondent to confirm that they are not at present in a position to offer reinstatement or reengagement. EJ Massarella is therefore required to make a continuation of contract order in the sum indicated (which is a gross sum). It is the Respondent’s contention that the order should however be for a nil duration, given that the Claimant would in any event have been dismissed by reason of redundancy following the conclusion of The Phoenix Way project, as the “policy and research” work referred to by EJ Massarella was so insubstantial that no salary could have been justified beyond the Respondent’s withdrawal from TPW project from 31 October 2024, still less when the project was closed entirely by the Global Fund for Children.’[47]I accept that it is implicit in the submission that the order should be of ‘nil duration’ that the Respondent’s position was that the amount the Claimant could reasonably have expected to earn, but for the dismissal, was nil.[48]I decided to give the Claimant an opportunity to respond. This was not something which I had said I would do at the end of the interim relief hearing. The Claimant’s email was as follows. ‘Further to the Respondent’s email of the 24th July 2025, I strongly reject the contention of the Respondent that it should be of nil duration. I believe that the payment of my Interim Relief should be from the date of my dismissal 12 March 2025 until the determination of my case at the ET, for unfair dismissal. The respondent has first of all repeatedly and falsely tried to maintain that I was a consultant even though I had a permanent contract and was being paid as an employee on the payroll each month. The tribunal dismissed these claims. My employment continued after the Respondent unilaterally ended the Phoenix way project on 31 October and my duties switched to other roles doing core work for the Respondent, which continue to be required in the organisation. The respondent is now trying to evade the interim relief payments awarded by the tribunal by claiming that I was indeed employed but that “I would have been dismissed” in the future because “the Phoenix Way project was closed entirely by the Global Fund for Children”. It should be noted that the Global Fund for Children (GFC) did not close the project. They were pleased with its progress and wanted it to continue. GFC were keen to make more funds available for a further extension of the project. It might be noted that the Respondent did not actually return the funds to the funder on 31 October 2024. Nor had they done so by the 16 July 2025 interim relief hearing even though they told the tribunal they had done so. The remaining funds were only returned to the funder on 24 July, the day they wrote their letter to the Tribunal, which was after the court ruling had been made against the respondent for interim relief. The returning of the funds was clearly done after I, and the other 5 colleagues in Yilmaz and the others’ case were all dismissed. They have created the situation in which there is no fund available after the dismissals. The Respondent’s decision to end the Phoenix way project on 31 October 2024, despite the readiness of the funder to continue funding, was unprecedented in the history of the Respondent’s work. I contend that this was part of their retaliatory behaviour against me for my protected disclosure contained in letters between September – November 2024. I contend that if any problem has been created by the ending of the Phoenix Way Project by the Respondent, then this is entirely a consequence of their own actions. I very much hope that the tribunal will not allow the Respondent to evade the decision and intention of the Employment Tribunal and deny their request that the period of interim relief be nil.’[49]The email contained a serious allegation of whistleblowing detriment which was entirely new. I expressly had regard to it in making the second judgment (J2/7): ‘On the basis of the evidence before me, I consider that there is a pretty good chance that the Tribunal will find at the final hearing that the termination of the Phoenix Way Project was part of the Respondent’s retaliation against the Claimant for making protected disclosures. In view of that, I think there is a pretty good chance that the Tribunal will go on to find that, had there been no retaliation, the Claimant would have continued to be employed by the Respondent under her permanent contract of employment beyond her dismissal and beyond the determination of this interim relief application.’[50]Having reviewed the circumstances in which I made the CCO, and having heard from Mr O’Keeffe, I am satisfied that it was a procedural error to determine the duration and amount of the CCO, in reliance on the Claimant’s contention of retaliation, without giving the Respondent an opportunity to make representations in response, either in writing or at a further hearing.[51]The Respondent has now had that opportunity at this hearing. In making his submissions on the second judgment, Mr O’Keeffe referred to documents which were before me at the previous hearing and to documents which were not. I consider that it is just to permit him to rely on both in seeking to respond to an entirely new point, which was a significant factor in the second judgment.[52]I turn first to my assessment that the Tribunal was pretty likely to find that the termination of the TPW project was retaliation against the Claimant for whistleblowing.[53]A decision to end the project, which the Claimant in her email above dates to 31 October 2024, plainly cannot have been retaliation for the November 2024 disclosures; it could only relate to the collective grievance.[54]On 19 July 2024, Ms Halliday wrote to the funders: ‘After thorough deliberation, the Board of Trustees has decided not to extend the Phoenix Way project and to hand it over to the Ubele Initiative as soon as possible. In line with this, we also recommend that Ubele take over the employment of Susan Cueva and Amma Owusu-Atuahene, as they have been diligently working on the project, to aid in the project’s smooth transition and turnover.’[55]In a grievance of 2 October 2024, the Claimant referred to the fact that the programme was scheduled to end by 31 December 2024 and that Ms Halliday had decided to end it three months early (at the end of October) and to return the funds to the funders. She characterised this as race discrimination. The collective grievance was submitted six days later, on 8 October 2024.[56]In light of this evidence, I consider that there are poor prospects that the Tribunal will find that the Respondent’s termination of the TPW project was in retaliation to the Claimant’s alleged whistleblowing.[57]I consider that it follows from this that I must also revisit the question of the amount of any CCO.[58]I turn to the question of whether the Claimant was contracted to do paid work in addition to the TPW work as at the date of her dismissal. Re-reading my first judgment I recorded that it was the Claimant’s evidence that she did other work in addition to the TPW work and, in the context of a provisional assessment of the employment status issue, I expressed a view that it was likely that the Tribunal would accept that, especially in light of an email dated 21 August 2023 from Ms Halliday to the Claimant (J1/30).[59]Mr O’Keeffe has reminded me today of the following documents. 59.1. In an email dated 20 August 2023, the Claimant had written: ‘I am writing to let you know the agreed fees I will charge against the Phoenix Way funds for London and Southeast regional work from 1 August. The agreed fees I will be charging is 6.5 days x £400 = £2,600 per month from 1 August until December 2023. Depending on the progress of the work and the funds available, we will review this before the end of December 2023.’ 59.2. On 16 August 2023, in the context of providing information for her backdated contract, the Claimant informed Lorie Halliday and Peninsula that she worked 35 hours in total for GLA and the Respondent, of which 21 hours related to GLA work up to 30 April 2023 and 14 hours from 1 May 2023, and that ‘I do not get paid or draw down my salary from Kanlungan for the work I do here’. 59.3. In an email of 23 November 2023 to the Respondent’s staff the Claimant noted that her GLA and TPW work was ‘completely different from the main work in Kanlungan’, for which ‘I continue to volunteer my time’. 59.4. In an email of January 2024 the Claimant wrote to Ms Halliday: ‘Also, as you know I am only paid for the GLA work and Phoenix work, which are bespoke separate work and not paid for any work in Kalungan, whether fundraising, HR, finance, project development, research etc.’ 59.5. In March 2024, the Claimant invoiced the Respondent separately for other work she had done for it between January and March 2024 in the amount of £525. 59.6. In response to a question put to her in the course of the disciplinary hearing (‘Can you confirm your role and responsibilities for Kanlungan and how long you have worked for them?’), the Claimant responded as follows on 29 November 2024 [257]: ‘I was employed in Kanlungan as a part-time programme manager seconded to the Greater London Authority between 1 May 2022 and 30 April 2024 and have been employed as part time Regional Lead for London and the South East for the Phoenix Way Programme from July 2023 until the present’.[60]Having reviewed these documents in the context of my second judgment as to the amount of any continuation order (as opposed to the likelihood of the Claimant’s succeeding on the issue of employment status), I have concluded 60.1. that the only paid work the Claimant was contracted to do under her contract of employment in the latter part of her employment was her work for the TPW project; 60.2. on her own account at the time, any other work the Claimant did for the Respondent was done as a volunteer; 60.3. the salary of £2,600 was solely referrable to the TPW project; 60.4. the TPW project was terminated early at the end of October 2024; had it not been terminated, it would have come to a natural end on 31 December 2024; 60.5. if the Claimant had continued to do any other work for the Respondent, it would have been as a volunteer; 60.6. consequently, the sum which the Claimant could reasonably have been expected to earn by way of pay had she not been dismissed, was nil.[61]I consider that the interests of justice require me to reconsider my judgment as to the terms of the CCO; if I do not do so, the Respondent would be required to pay to the Claimant salary to which she was not entitled, and it which it could not recoup; and the Claimant would benefit from an unjustifiable windfall.[62]In these circumstances, I am satisfied that the second judgment should be varied to remove the requirement that the Respondent pay to the Claimant any salary at all.