M Dennis v Foresight Group LLP and Others: 6012149/2026
EMPLOYMENT TRIBUNALS
Case No 6012149/2026
Between
M DennisClaimantForesight Group LLP and OthersRespondent
Before
Employment Judge Rice-BirchallDate 29 June 2026
JUDGMENT
ON INTERIM RELIEF APPLICATION The claimant’s application for interim relief pursuant to section 128 of the Employment Rights Act 1996 fails and is dismissed.
REASONS
[1]This was a hearing to hear the claimant’s application for interim relief pursuant to section 128 of the Employment Rights Act 1996 (ERA), which relates to the claimant’s claim of automatic unfair dismissal as a result of making a protected disclosure under section 103A ERA.[2]The Tribunal had the benefit of a bundle of documents from the claimant comprising 66 pages, which included a witness statement from the claimant and attachments. From the respondents, there was a separate bundle of documents comprising 112 pages and including witness statements from R3, partner and co-manager and Ms Ruffley, chief people officer of the Foresight Group. The statements were read only and no oral evidence was heard, as is the default position in interim relief hearings (rule 94 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2024 (the ET Regs).[3]The Tribunal had the benefit of a skeleton argument from the claimant and the respondent, and heard oral submissions. The parties[4]The claimant was employed by the respondent, an investment management company. She says she commenced her employment on 26 June 2023. The respondent says it was on 28 October 2024, following a period during which the claimant worked for a third party temp agency, and that, accordingly, as at the date of termination of her employment she had less than two years’ continuous employment with the respondent. Her termination date was 31 March 2026, after being notified of the decision to dismiss her orally on 10 March 2026.[5]The date of commencement of employment is relevant because, whilst the claimant does not need two years’ continuous service to bring her complaint of dismissal due to a protected disclosure, the respondent could dismiss the claimant without following any particular process if she lacked two years’ continuous service.[6]Early conciliation took place between 2 and 7 April 2026.The claimant submitted a claim to the Tribunal, received on 7 April 2026, raising, inter alia, a complaint of automatic unfair dismissal on the basis that she made protected disclosures under section 103A ERA. In her claim form she also applied for interim relief.[7]The ET3 and Grounds of Resistance have not yet been filed and there have been no orders for disclosure made or complied with. However, the respondent submits that the reason for the claimant’s dismissal was her poor performance and not any disclosure by her.[8]It was accepted by the respondent and the Tribunal that the claimant had complied with the necessary formalities for the application.[9]The claimant seeks a continuation order in accordance with section 129 ERA.
The issues
[10]For the claimant to succeed at final hearing on her claim under section 103 ERA, the Tribunal will have to find each of the following:a. That the claimant made the alleged disclosure(s) relied on;b. That it/they amounted to a protected disclosure within the meaning of section 43A ERA;c. That the disclosures were made ion the public interest;d. That the respondent dismissed the claimant; ande. That the reason, or principal reason for the dismissal was the claimant having made the protected disclosure(s) relied on.[11]For the application of interim relief to succeed, the Tribunal needs to be satisfied, as regards each of the limbs of the claimant’s claim as set out above, that it is likely that, at the final hearing, the Tribunal will find in the claimant’s favour and that her claim will succeed.
The applicable law
[12]Section 128 ERA reads as follows: (1) An employee who presents a complaint to an employment tribunal that he has been unfairly dismissed and – (i) that the reason (or if more than one the principal reason) for the dismissal is one of those specified in – (i) … s.103A may apply to the tribunal for interim relief”[13]Section 129 ERA states: (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 … s.103A.[14]A complete statement of the law applicable to applications for interim relief can be found in the case of Mr A Wollengberg v Global Gaming Ventures (Leeds) Limited, Mr A W Herd [2018, UKEAT/0053/18/DA] at paragraphs 24-27:[24]Section 103A of the ERA provides that if the sole or principal reason for a dismissal is that the employee made a protected disclosure, the dismissal should be regarded as unfair. Section 128 makes provision for an application for interim relief, which will keep the contract of employment in force for limited purposes until determination of the claim of unfair dismissal. Section 129(1) sets out the test which must be satisfied before the application is granted. It must appear to the ET that it is likely that on determining the substantive complaint the reason for dismissal will indeed be the reason alleged by the employee. The application must be made urgently and the ET must determine the application as soon as practicable after it is received; see section 128(3)-(5) . The ET will not hear oral evidence unless it makes a positive decision to do so; see Rule 95 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 ("ET Rules").[25]Taplin v C Shippam Ltd [1978] ICR 1068 and Ministry of Justice v Sarfraz [2011] IRLR 562 are leading cases on the tests to be applied by the ET. Put shortly, an application for interim relief is a brief urgent hearing at which the Employment Judge must make a broad assessment. The question is whether the claim under section 103A is likely to succeed. This does not simply mean more likely than not. It connotes a significantly higher degree of likelihood. The Tribunal should ask itself whether the Applicant has established that he has a pretty good chance of succeeding in the final application to the Tribunal.[26]Reasons must of course be given for the decision on an application for interim relief. As to reasons generally, the requirement is that reasons should enable the parties to see why they have won or lost and should enable an appellate court to see that the law has been correctly understood and applied. The nature and extent of the reasoning required will depend on the issues.[27]The requirement to give reasons in the context of an application for interim relief has been considered by the EAT in Dandpat v University of Bath UKEAT/0408/09, Parsons v Airplus International Ltd UKEAT/0023/16 and Al Qasimi v Robinson UKEAT/0283/17. The learning from those decisions was helpfully summarised by Her Honour Judge Eady QC in Al Qasimi in paragraph 59: "59. I start by reminding myself of the exercise that the ET had to undertake on this application. By its nature, the application had to be determined expeditiously and on a summary basis. The ET had to do the best it could with such material as the parties had been able to deploy at short notice and to make as good an assessment as it felt able. The ET3 was only served during the course of the hearing and it is apparent that points emerged at a late stage and had to be dealt with as and when they did. The Employment Judge also had to be careful to avoid making findings that might tie the hands of the ET ultimately charged with the final determination of the merits of the points raised. His task was thus very much an impressionistic one: to form a view as to how the matter looked, as to whether the Claimant had a pretty good chance and was likely to make out her case, and to explain the conclusion reached on that basis; not in an over-formulistic way but giving the essential gist of his reasoning, sufficient to let the parties know why the application had succeeded or failed given the issues raised and the test that had to be applied." 15. The EAT in Robinson stated that it must be shown that the claimant has a “pretty good chance of succeeding”, not merely that they could possibly win. It is this test that is to be applied rather than the balance of probabilities. This sets a relatively high bar for the claimant. 16. Further, the test of “likely to succeed” will apply to all elements required to establish the claimant’s s103 ERA claim: Hancock v Ter-Berg and Another [2020] IRLR 97 (paras 35-38). In other words, the claimant has to show this likelihood of success (or near certainty) overall. In a typical whistleblowing case there may be several issues – whether there was a legally protected disclosure, whether it was made in the public interest and whether disclosure was the principle reason for dismissal. Any weak link in that chain would mean that interim relief is not appropriate. 17. Most recently, Cavanagh J in Steer v Stormsure [2021]ICR 808, stated, at para 31: “The net effect of these provisions, therefore, is that a claim for interim relief, if successful, does not mean in practice that the tribunal will require the employer to permit the claimant to carry on working pending the determination or settlement of his or her claim. It is not the equivalent of a mandatory injunction or specific performance of the obligation to provide work. Rather, it means that the claimant will continue to receive his/her salary and other benefits in the period up to determination of claim or settlement. This is a valuable benefit, because it can take a number of months before a claim is finally determined….It means that the claimant has a financial cushion whilst s/he is waiting for his/her claim to be heard.” Impressions and decision 18. The Tribunal must form a view on the material available whether there is a pretty good chance overall (in the sense of much nearer to certainty than an even chance) that this claim will succeed in due course. Nothing the Tribunal says should be taken to indicate a final conclusion or a decision on the facts, the Tribunal is simply giving its initial impression of how things look at present, based on the papers before it and the time available. 19. The Tribunal has attempted to work through the main issues but inevitably the focus in a short hearing of this sort is on any area of potential weakness. In Parsons v. Airplus International Ltd UKEAT/0023/16 the Employment Judge was criticised on appeal by the disappointed claimant for failing to work through each of those issues in turn. The view of the Employment Appeal Tribunal was that this was not necessary, given the broad brush approach required, and it was sufficient that the focus had been placed on causation. 20. Accordingly, the Tribunal has not found it necessary to go through each and every potential issue. If the claimant cannot satisfy the Tribunal on any one issue that she is likely to succeed, the application for interim relief must fail. Any weak link in the chain means that interim relief is not appropriate. 21. Based on its broad assessment of the claim, the Tribunal has determined that the claimant’s section 103 ERA claim is not “likely” to succeed and does not reach the high threshold required by section 129 ERA for the following reasons. Is the claimant likely to be able to show that there was a protected disclosure(s)? 22. A protected disclosure is a qualifying disclosure made in accordance with any of s43C-H ERA, typically to the claimant’s employer. 23. Section 43B ERA states that a qualifying disclosure is: “ …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, …” and so on. In this case the category relied upon is (b). 24. The disclosure must be of information. The mere making of an allegation is insufficient unless some concrete factual information is also conveyed. So, saying: “you are not complying with health and safety requirements” discloses no information, but adding, “because the wards have not been cleaned for two weeks” does: Cavendish Munro Professional Risk Management Limited v Geduld [2010] IRLR 38. 25. More recently, in Kilraine v London Borough of Wandsworth [2018] ICR 846, the Court of Appeal stressed that ‘information’ and ‘allegation’ are not mutually exclusive and that Tribunals should consider instead whether the disclosure has “a sufficient factual content and specificity such as is capable of tending to show one of the six relevant failures”. 26. The disclosure must have identified to the employer the breach of legal obligation concerned: Fincham v HM Prison Service UKEAT/0991/01. This need not be in strict legal language. If the breach is obvious the test is met: Bolton School v Evans [2006] IRLR 500. 27. In this case, the alleged protected disclosures concerned the claimant’s concerns over the migration of the alternative fund manager and the instructions given to the claimant to engage with Israeli investors, which the claimant says she reported to members of R1’s senior management team, including R2.[28]The claimant’s pleaded claim and her witness statement makes references such as: “I repeatedly raised my continued concerns” and describes in general terms the concerns she had. However, the claimant does not set out the precise words she alleges she used on each occasion that she alleges she made a protected disclosure. It is therefore unclear what precisely the claimant alleges she said on each occasion she alleges she made a protected disclosure. As the alleged disclosures were oral, there is unlikely to be any contemporaneous written evidence of what was said. Further, the claimant, whilst raising her concerns, does not claim to have identified them as protected disclosures, which again means that there is unlikely to be any contemporaneous written record.[29]For these reasons, the Tribunal’s impression from the documents and evidence before it, is that the claimant does not reach the high threshold required to satisfy the Tribunal that she made protected disclosures, as there is insufficient factual content and specificity. Is the claimant likely to be able to show that protected disclosure(s) was/were the principal reason for the dismissal?[30]If the claimant can establish that she did make a protected disclosure, another issue for the Tribunal is whether she was dismissed as a result. By s. 103A Employment Rights Act 1996: “An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee made a protected disclosure.”[31]For such an ‘automatically unfair dismissal’ it is not necessary to have two years’ qualifying service. Those without two years’ service have the burden of proving this principal reason. As explained by the Court of Appeal in Kuzel v Roche Products Ltd [2008] IRLR 530, those with two years’ service (as here) just have to provide some evidence to show that it was for a different reason – i.e. whistleblowing. The tribunal may agree, or find that it was for another reason altogether.[32]The principal reason is the reason that “operated on the employer’s mind at the time of the dismissal”: per Lord Denning MR in Abernethy v Mott, Hay and Anderson 1974 ICR 323, CA. So, for example, in Kuzel v Roche Products Ltd [2008] IRLR 530, the tribunal found that the principal reason was simply that the line manager lost his temper. We therefore need to address the reason that operated on the mind of the decision maker.[33]There are exceptions to this principle, where someone else is aware of the protected disclosures and wants the employee dismissed, but gets another manager to take the decision. The leading case is the Supreme Court’s decision in Royal Mail Group Ltd v Jhuti 2020 ICR 731, SC. In that case the employment tribunal had found that the employee made protected disclosures to her line manager, the line manager responded by bullying her and pretending that her performance was inadequate, and someone else was appointed to decide whether she should be dismissed. The manager had no reason to doubt what he was told about her performance. The Supreme Court thought that these facts were extreme and such cases would be rare. Usually the employee would be involved in the decisionmaking process and could have their say. (In that case the employee was off sick with stress and the decision was taken in her absence.) The question was ultimately what was the reason for the dismissal: “If a person in the hierarchy of responsibility above the employee decided that the employee should be dismissed for a reason, but hid it behind an invented reason which the decision-maker adopted, it was the court's duty to penetrate through the invention rather than to allow it also to infect its own determination.”[34]The final point to note is that there can be a combination of disclosures. In El-Megrisi v Azad University (IR) in Oxford UKEAT/0448/08 (4 June 2009, unreported) the Employment Appeal Tribunal held that where an employee alleges that they have been dismissed because they made multiple public interest disclosures, s. 103A does not require a tribunal to consider each such disclosure separately and in isolation, as their cumulative impact can constitute the principal reason for the dismissal.[35]The Tribunal’s impression from the documents and evidence before it is that it is not likely that the claimant would be successful in her argument that the protected disclosures were the principal reason for her dismissal.[36]Significantly, according to the respondent’s evidence, there were performance issues. In fact, the claimant’s evidence that she was a high performer does not appear to be consistent with the documentary and witness evidence adduced by the respondent, including in a catch up in November 2025 when R3 gave an example of when work had not been delivered in a timely manner and had not been kept updated; and when the claimant had ordered some particularly expensive wine. Further, R3 wrote to JJ, who was taking over responsibility for the claimant’s catch ups in January 2026, with a clear implication that there were areas in which the claimant was not meeting the required standards. Examples were given, including the claimant’s attendance in the office and invitations for the Berlin Infrastructure Investor conference. The Tribunal’s impression is that these examples support R3’s evidence that he did not consider that he was receiving “the necessary support or pro-active input from the claimant”. There was also evidence that R3’s view of the claimant was shared by others.[37]Further, the respondent’s evidence was that the approach taken to dismissing the claimant was consistent with their belief and understanding that the claimant did not have two years’ continuous employment. Therefore, the fact that the claimant was dismissed without following due process does not lend weight to the claimant’s allegation that she was dismissed because she was perceived as a “troublemaker” after having made protected disclosures, but rather is consistent with a desire to dismiss the claimant before she had been employed for two years for performance issues, so as to avoid a process, or that the respondents were free to dismiss the claimant without following process given her length of service. This is supported by R3’s evidence that he checked whether or not the claimant had two years’ continuous service before concluding that the claimant should be dismissed.[38]The Tribunal’s impression from the documents and evidence before it is that it is not therefore likely that the claimant would succeed in establishing that the principal reason for her dismissal was the raising of protected disclosures.[39]The claimant’s application for interim relief is dismissed.