Ms Z Zorokong v The Ministry of Defence: 6011016/2025
EMPLOYMENT TRIBUNALS
Case No 6011016/2025
Between
Ms Z ZorokongClaimantMr P Livingston, CounselRespondent
Before
Employment Judge DavidsonMr D Stephenson (instructed by Counsel) for claimantMr P Livingston (instructed by Counsel) for respondentDate 15 May 2025
JUDGMENT
It is not likely that, on determining the complaint to which the application relates, the Tribunal will find that the reason or principal reason for the claimant’s dismissal is that specified in s103A ERA 1996. Interim relief is therefore not appropriate in this case. JUDGMENT having been sent to the parties on 16 May 2025 and written reasons having been requested in accordance with Rule 60(4) of the Employment Tribunal Rules of Procedure 2024, the following reasons are provided:
REASONS
Issues
[1]The claimant was dismissed on 24 March 2025. On 31 March 2025 she submitted a claim for unfair dismissal, age discrimination, race discrimination, disability discrimination, sex discrimination and automatic unfair dismissal (whistleblowing) and whistleblowing detriment. As part of that claim she claimed interim relief. This hearing was to determine that application.[2]The claimant has three current employment tribunal claims against the respondent and has raised internal grievances and complaints. In her pleaded claim, she has identified 9 protected disclosures. Evidence[3]I read witness statements from the claimant, Aneen Blackmore (Director General of Finance and Joint Decision Maker) and Fiona Tulloch (Decision and Appeal Manager and Joint Decision Maker). I also had a bundle of 340 pages and skeleton arguments from counsel for both parties. Facts[4]The background facts are as follows: 4.1. The claimant was employed by the respondent from 24 February 2020 as a Head of Strategy. She became acting Chair of the respondent’s Race Equality Network in 2022 and was later elected co-Chair in December 2022. 4.2. She has made a number of complaints and grievances, some of which are accepted as protected disclosures by the respondent. I do not consider it necessary to form a preliminary view whether each disclosure relied on is a protected disclosure for the purposes of this hearing. 4.3. The claimant took sick leave from September 2023 and returned to work in March 2024. During her absence she had raised grievances against a colleague, her line manager and the countersigning manager. On her return to work, she informed the respondent that she did not want to work with or be in contact with the colleagues she had submitted complaints about. The respondent agreed to look for an alternative role in another directorate. 4.4. For various reasons, no suitable roles were found for the claimant over the following months and, although at work and on full pay, she had no meaningful role. She expressed concerns that there was nowhere she felt safe to work within the respondent and she made stipulations about any role she would consider including receipt of the team’s diversity statistics, the manager’s history of managing blacks and black females. 4.5. In September 2024, the claimant escalated concerns she had raised with the respondent to ministers and in December 2024 she escalated a complaint of bullying, harassment and discrimination on grounds of race to EHRC, shared with the Secretary of State and the Minister. 4.6. In February 2025, HR approached Aneen Blackmore and Fiona Tulloch to ask them to be decision makers in relation to the issue of whether the claimant’s employment with the respondent could continue or whether it had become untenable due to a breakdown in trust and confidence. 4.7. The claimant was invited to a meeting and was given a pack of background materials. The meeting took place on 17 March 2024 and was attended by the claimant, Aneen Blackmore and Fiona Tulloch. In summary, the claimant was told that the respondent felt the situation was untenable for the following reasons: 4.7.1. since joining the department, the claimant has held five separate roles and reported to seven different line managers: 4.7.2. she has brought unsuccessful formal complaints against the majority of these line managers as well as a number of informal unsubstantiated accusations against further colleagues; 4.7.3. in addition she has sent disruptive and unfounded accusatory emails to senior leaders within and outside of the department, including permanent secretaries and ministers; 4.7.4. she has been without meaningful work since March 2024 on full pay; 4.7.5. she has declined to engage with finding suitable work opportunities. 4.8. She was given an opportunity to make mitigation representations. She told the decision makers that she had been a victim of discrimination and had experienced bullying, harassment and discrimination which had not been dealt with. She felt victimised and ending her employment would be unfair. She denied that she had been disruptive. 4.9. After the meeting closed, Aneen Blackmore and Fiona Tulloch considered the issue and concluded that trust and confidence between the claimant and the respondent had broken down and that her continued employment was untenable. The reason relied on as a potentially fair reason was ‘some other substantial reason’ (SOSR). This was communicated to the claimant by letter dated 24 March 2025. Submissions[5]The reasons relied on by the respondent for the irretrievable breakdown in trust and confidence are 5.1. the claimant’s inability to accept the findings where her complaints are not upheld; 5.2. the claimant failing to engage with finding meaningful work and dictating unreasonable terms for accepting alternative roles; 5.3. the unreasonable volume and tone of the claimant’s allegations (not limited to the alleged protected disclosures); 5.4. the claimant having lost trust and confidence in the respondent.[6]The claimant asserts that the principal reason for dismissal was that she had made protected disclosures. She relies on the absence of any disciplinary or performance procedures to address the criticisms of her and the proximity in time between the disclosure to the EHRC in December 2024 and the commencement of the SOSR process in February 2025. Law[7]The relevant law is set out below.[8]Section 128 Employment Rights Act (ERA) 1996 provides: 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 100(1)(a) and (b), 101A(1)(d), 102(1), 103 or 103A, or (ii) paragraph 161(2) of Schedule A1 to TULRCA 1992,… may apply to the tribunal for interim relief.[9]The question to be considered upon an application for interim relief is set out in s129 ERA 1996: 129. Procedure on hearing of 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 that the reason (or if more than one the principal reason) for the dismissal is one of those specified in section 100(1)(a) and (b), 101A(1)(d), 102(1), 103 or 103A[10]Interim relief can therefore be ordered where the Tribunal finds that it is likely that a final hearing will decide that the reason (or principal reason) for dismissal was the employee having made protected disclosures contrary to s 103A ERA1996.[11]The meaning of the word 'likely' for these purposes has been considered in several cases. In Taplin v C Shippam Ltd [1978] IRLR 450 EAT, (decided under similar provisions relating to interim relief applications in dismissal for trade union reasons) the EAT held that it must be shown that the claimant has a 'pretty good chance' of succeeding, and that that meant something more than merely on the balance of probabilities.[12]A 'pretty good chance' of success was interpreted in the whistleblowing case of Ministry of Justice v Sarfraz [2011] IRLR 562, EAT, as meaning 'a significantly higher degree of likelihood than just more likely than not'. Underhill P stated in Ministry of Justice v Sarfraz [2011] IRLR 562 that, “in this context ‘likely’ does not mean simply ‘more likely than not’ – that is at least 51% - but connotes a significantly higher degree of likelihood.”.[13]The Claimant must show the necessary level of chance in relation to each essential element of automatic unfair dismissal, see Simply Smile Manor House Ltd and ors v Ter-Berg [2020] ICR 570.[14]The Claimant must therefore show that it is likely that the Tribunal at the final hearing will find that: 14.1. she made the disclosures to the employer; 14.2. she believed that they tended to show one or more of the matters listed in the ERA 1996 s 43B(1); 14.3. her belief in that was reasonable; 14.4. the disclosure(s) was or were made in the public interest; and 14.5. the disclosure(s) was or were the principal cause of the dismissal.[15]In determining whether the reason for the Claimant’s dismissal was her alleged disclosure, it is not sufficient for the disclosure to be “in the employer’s mind” or for it to have influenced the employer. The Tribunal must consider whether that disclosure was the “sole or principal reason” for her dismissal,
Conclusion
[16]I have to assess whether it appears likely that a final hearing would find that the claimant had succeeded in each of the elements of an automatically unfair dismissal claim under section 103A Employment Rights Act 1996.[17]In the context of this case, what I need to decide whether it was likely that the tribunal would find in the final hearing that the disclosure was the principal reason for dismissal (rather than SOSR).[18]I find that the claimant has not shown that the sole or principal reason for dismissal was the fact that she had made protected disclosures. I accept that her numerous complaints were cited as a factor in the decision but I disagree that it was simply because she made the complaints. I find that the respondent has explained that this was due (partly or mostly) to the tone of these complaints and the number of complaints, many of which are not protected disclosures in any event. I find that it was certainly not only the nine protected disclosures, or disclosures 5 and 7 which were the principal reason for the dismissal.[19]I find that the claimant is unlikely to show that the protected disclosures were a more important factor than her being out of a meaningful role for 12 months. I find that this is the most likely main reason, particularly when considered in the wider context of a failure to engage, the imposition of conditions and the comments from the claimant that she did not feel safe anywhere within the respondent.[20]Another factor was the claimant’s inability to accept adverse outcomes and the lack of trust and confidence she had in the respondent. I find that these are cogent reasons supported by evidence and, while it will be for the final hearing to examine that evidence, I do not find that the claimant has shown to the degree necessary that the reason for her dismissal was her protected disclosures.[21]The claim for interim relief fails. The claim will proceed to case management tighter with the other claims currently in the system.