Employment Judge AnnandMs Kight (instructed by Counsel) for respondentDate 19 January 2025
JUDGMENT
[1]The Claimant’s claim for interim relief is not well founded and is dismissed.
REASONS
An oral judgment and reasons having been given to the parties at the hearing on 18 November 2024, and written reasons having been requested in accordance with Rule 60(3) of the Employment Tribunals Rules of Procedure 2013, the following reasons are provided:
Introduction
[1]The purpose of the hearing was to consider the Claimant’s application for interim relief. He made this application on the basis that he claims he was automatically unfairly dismissed on grounds of having made a protected disclosure.[2]The Claimant was employed by the Respondent, most recently as a Chief Immigration Officer. On 23 September 2024, the Claimant was dismissed. He was informed his last day of service would be 30 September 2024. On the same day, 30 September 2024, the Claimant lodged a Claim Form in the Employment Tribunal.[3]The Claimant’s Claim Form refers to claims of unfair dismissal, race, age and disability discrimination, a claim for whistleblowing, notice pay, holiday pay, arrears of pay and other payments. In his Claim Form, the Claimant noted he had not applied to ACAS for early conciliation because he was bringing a claim for unfair dismissal which contains an application for interim relief.[4]In his Claim Form, the Claimant referred to three occasions when he had blown the whistle prior to his dismissal. He wrote: Issue 1 - Unlawful instruction to permit exercise of EU treaty rights by my line manager to permit an illegal Ukrainian immigrant to exercise EU treaty rights on the basis of a fraudulently obtained genuine EU (Romanian) passport who I had previously refused leave in October 2019. Issue 2 - Unlawful conduct of the HOIE policy unit. In April 2022 I blew the whistle to both Home Office Permanent Secretaries on policy instructions that would put frontline immigration officers in breach of law. Issue 3 - Abuse of internal Home Office disciplinary and grievance processes by various Home Office managers involved, not only in my case but involving many other staff.[5]The Claimant clarified his claim was for interim relief only and noted he planned to make a separate claim to the Employment Tribunal for automatic unfair dismissal, unfair dismissal and constructive dismissal.[6]On 11 October 2024, the Tribunal wrote to the Claimant to notify him that all his claims had been rejected except for his claim for interim relief. On the same day, a hearing was listed to determine the application for interim relief on 18 November 2024.[7]The Respondent was notified of the Claimant’s claim for interim relief. A Response was submitted to the Tribunal. In its Response, the Respondent set out that the Claimant had been dismissed for gross misconduct relating to four matters. Firstly, the Claimant had sent an email on 18 August 2023 in which he referred to his Line Manager Claire Faxon as a narcissistic sociopath. Secondly, the Claimant had used offensive language on 31 August 2023 when he commented that Area Directors chicken out when it came to making certain decisions. Thirdly, in a document dated 12 September 2023 the Claimant had compared the Director of Immigration Enforcement to Himmler, and her leadership as similar to that of the Nazis, and the fourth matter related to the Claimant sending emails from his work email address to his personal email address which contained sensitive or personal information relating to his colleagues.[8]The Respondent set out in the Response that on 12 October 2023 the Claimant had been suspended pending an investigation into the allegations. An investigation was then conducted.[9]On 23 July 2024, the Respondent found there was a case to answer.[10]On 31 July 2024, the Claimant was invited to a disciplinary hearing. The hearing took place on 16 September 2024 and was held by Mr Saggo. The Claimant did not deny the allegations but gave his explanation for his choice of words or actions.[11]On 23 September 2024, the Claimant was informed that the allegations against him had been found to be proven, he was to be dismissed, and his final day would be 30 September 2024.[12]The Claimant previously made a claim to the Employment Tribunal against the Respondent in 2023. He brought claims of race discrimination, victimisation, and a claim he had been subjected to detriments on grounds of having made a protected disclosure. Those claims were heard by Employment Judge Gumbiti-Zimuto, sitting with Tribunal members, in July 2023. The Claimant did not succeed with those claims. He requested written reasons, and they were provided on 13 September 2023.[13]On 22 September 2023, the Claimant applied for reconsideration, and regrettably that application was not processed and so neither party has been informed of the outcome of that application. The Claimant appealed to the Employment Appeal Tribunal and the appeal was not successful.[14]In the previous Judgment, dated 13 September 2023, the Tribunal considered a number of the documents which the Claimant argued were protected disclosures. Some of those documents are the same documents which the Claimant relies upon in respect of Issue 1 and which he again argues are protected disclosures. The Tribunal in July 2023 looked at four documents which related to Issue 1 and found none of them were protected disclosures.[15]The Tribunal went on to consider, if it was wrong about that matter, whether there was a link between the alleged detriment and the Claimant’s alleged disclosure. The Tribunal did not find in the Claimant’s favour on this point.[16]The Claimant has also submitted a further two claims to the Tribunal in 2023 and a final hearing is listed to determine those matters in June 2025.[17]For the purposes of the interim relief hearing, I was provided with a witness statement from the Claimant and Mr Saggo, a bundle of documents, and a skeleton argument from both parties. I did not hear oral evidence from either witness, but I heard submissions from both parties.[18]After I heard both parties’ submissions, and before I took some time to consider my decision, the Claimant raised that he thought we should address “the elephant in the room”. I asked him what that was. He said it was the fact that both Ms Kight and I are Employment Tribunal Judges. I explained to the Claimant that I was not aware that Ms Kight was an Employment Tribunal Judge and reassured him it would make no difference at all to my decision. I explained I would reach my decision based on the merits of the application.[19]Finally, at the hearing, the Respondent explained the correct name for the Respondent is the “Home Office” and therefore I have amended the Respondent’s name.
The law
[20]Under section 128(1) of the Employment Rights Act 1996 (ERA), an employee claiming unfair dismissal can apply for interim relief if he or she is asserting that the reason (or principal reason) for the dismissal was that he or she made a protected disclosure under Part IVA ERA (Section 103A)[21]Under section 129 of ERA, when deciding a claimant’s application for interim relief, a tribunal must decide whether it is likely that he or she will succeed at a full hearing of the unfair dismissal complaint. The test is whether “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 automatically unfair reason for dismissal is established.[22]In London City Airport Ltd v Chacko [2013] IRLR 610, EAT, the Employment Appeal Tribunal (EAT) stated that this test requires the tribunal to carry out an ‘expeditious summary assessment’ as to how the matter appears on the material available, doing the best it can with the untested evidence advanced by each party. This necessarily involves a far less detailed scrutiny of the parties’ cases than will ultimately be undertaken at the full hearing.[23]In Taplin v C Shippam Ltd [1978] ICR 1068, the EAT held that when considering the ‘likelihood’ of the claimant succeeding at tribunal, the correct test to be applied is whether he or she has a “pretty good chance of success” at the full hearing. In that case, the EAT expressly ruled out alternative tests such as a ‘real possibility’ or ‘reasonable prospect’ of success, or a 51 per cent or better chance of success. According to the EAT, the burden of proof in an interim relief application was intended to be greater than that at the full hearing, where the tribunal need only be satisfied on the ‘balance of probabilities’ that the claimant has made out his or her case.[24]In Ministry of Justice v Sarfraz [2011] IRLR 562, EAT, Mr Justice Underhill commented that the test of a ‘pretty good chance of success’, which was accepted in Taplin, is not very obviously distinguishable from the formula ‘a reasonable chance of success’, which was rejected. However, he said, the message to be taken from Taplin was clear. ‘Likely’ does not mean simply “more likely than not” but connotes a significantly higher degree of likelihood, “something nearer to certainty than mere probability”.[25]Therefore, when determining this application, I had to consider if the Claimant has a ‘pretty good chance of success’ in establishing he made protected disclosures and establishing that the reason or principal reason for his dismissal was that he had made protected disclosures.[26]I start my emphasising that I am not making any findings of fact. I am not reaching any conclusions that bind the hands of any future Tribunals. All I am doing is asking whether I am satisfied that the Claimant has a ‘pretty good chance of succeeding’ with his claim of automatic unfair dismissal on grounds of having made a protected disclosure at a future hearing.[27]Firstly, I have looked at whether the Claimant has a pretty good chance of success when it comes to persuading the Tribunal that he made a protected disclosure or protected disclosures.[28]With regards to Issue 1, the Claimant relies on 6 documents in which he says he made protected disclosures. 3 of those 6 have already been considered by the Employment Tribunal in the previous case, and they found they did not amount to protected disclosures. Therefore, I do not consider he has a pretty good chance of succeeding with his argument in respect of those three documents. In reaching that decision, I have taken into account the Claimant’s application for reconsideration regarding the Tribunal’s previous judgment, but I am not persuaded by what I have read that the Tribunal would have reached a different conclusion had it been aware of the points he seeks to make in the request for reconsideration. With his application for reconsideration, the Claimant sought to introduce four new pieces of evidence. However, I was not of the view that they would have affected the Tribunal’s decision regarding the protected disclosures.[29]In respect of the other 3 alleged protected disclosures, which related to Issue 1, the first is said to have occurred on 3 September 2020 when the Claimant spoke to the Disciplinary Appeal manager, Carla Johnson. Notes were made of this meeting and the Claimant explained he considered his protected disclosure was captured on page 425, where it is recorded that he said he believed that Civil Service Managers are usurping the political mandate of the day. He is recorded as referring to a policy being diluted.[30]The second alleged protected disclosure which the Claimant relies upon, and which relates to Issue 1, is said to have occurred on 26 March 2021, in a meeting with Grievance Investigator, Sue Bentley. The Claimant referred specifically in his skeleton argument to the documents at pages 472, 457 and 475. When we looked at these pages, the Claimant only relied on the document at page 475 where it was recorded that the Claimant had said it was unlawful for Scott Ronaldson to have returned the papers to the applicant, and he is recorded as citing a legal provision which he said this was in breach of.[31]The third alleged protected disclosure which the Claimant relies upon, and which relates to Issue 1, was a grievance which the Claimant sent to Director Patricia Fitzmaurice. It was originally understood that the grievance was not in the bundle, and after the submissions were concluded, the Claimant sent the documents he relied upon to the Tribunal. Ms Kight for the Respondent was given an opportunity to read the document and make any further comments that she wished to make about it. Ms Kight noted that the grievance was in fact in the bundle and made some additional comments regarding it.[32]The Respondent argued that all the documents cited above were before the Tribunal at the previous hearing in July 2023, and yet at that hearing the Claimant did not rely on them as protected disclosures. When asked why not, the Claimant’s explanation was that he is not legally qualified and is unrepresented. The Respondent also argued the additional documents did not demonstrate the Claimant had made “a disclosure of information”.[33]With regards to Issue 2, the Claimant also alleges that he made a protected disclosure when he emailed the permanent secretaries on 4 April 2022. The Respondent did not dispute those emails were capable of amounting to a protected disclosure. The Respondent did however point out that the Claimant in his skeleton argument has broaden the scope to include other documents which relate to Issue 2.[34]In respect of Issue 3, the Claimant also alleges that he made a protected disclosure when he emailed the Director General on 7 August 2024. The Respondent accepts the Claimant’s email raises allegations regarding breaches of the law but says it is not a disclosure which the Claimant reasonably believed was made in the public interest, because it relates exclusively to his concerns about his situation. In other words, he is complaining about the application of the disciplinary process and the grievance process to him personally.[35]I started with the most straight forward issue. I concluded that the Claimant has a pretty good chance of success when it comes to persuading the Tribunal that he made a protected disclosure when he emailed the permanent secretaries on 4 April 2022. This was not disputed by the Respondent.[36]However, I have not been persuaded that the Claimant has a pretty good chance of success when it comes to persuading the Tribunal that he made a protected disclosure in respect of Issue 1. I have accepted the Respondent’s argument regarding whether the documents show the Claimant made a “disclosure of information”. While there are some concerns raised, as recorded in the minutes of the Carla Johnson notes, and the notes of the meeting with Sue Bentley, I have not concluded that the Claimant has a pretty good chance of demonstrating he made a disclosure of information.[37]In respect of the grievance to Patricia Fitzmaurice, I did not find that the Claimant has a pretty good chance of showing firstly, he made a disclosure of information, and secondly, that the information tended to show that a breach of a legal obligation had occurred, and thirdly that the Claimant reasonably believed it was in the public interest. I have not concluded that the Claimant has poor prospects of success or that he does not have reasonable prospects of success, but I am not satisfied that he does have “a pretty good chance of success”.[38]In respect of Issue 3, I am also not persuaded that the Claimant has a “pretty good chance of success” when it comes to persuading the Tribunal that he made a protected disclosure in his email of 7 August 2024. I accept the Respondent has raised a valid argument about whether a Tribunal will be persuaded that the Claimant reasonably believed his disclosures were in the public interest.[39]The next issue that I considered is whether the Claimant has a pretty good chance of success when it comes to showing a causative link between any protected disclosures or disclosures and his dismissal.[40]I have considered this in respect of all three alleged protected disclosure issues in case I am wrong in the conclusions I have reached above about the protected disclosures relating to Issues 1 and 3. I have not concluded that the Claimant has a pretty good chance of success when it comes to showing a causative link between any protected disclosures or disclosures and his dismissal. There are several reasons why I have reached this decision.[41]Firstly, the Respondent has provided its explanation for the dismissal, which does not relate to the Claimant’s protected disclosures, and it has provided evidence of the allegations of misconduct. The Claimant has not denied the misconduct but has offered an explanation for his behaviour. The Claimant has raised a number of criticisms about the process that led to his dismissal. Those points may be relevant when a Tribunal considers a claim of ordinary unfair dismissal and looks at whether a fair procedure was followed. However, it was my task to consider if the Claimant has a pretty good chance of success when it comes to establishing that the reason or principal reason for his dismissal was that he made a protected disclosure. Even if I were to accept that there were procedural errors, I am not persuaded that is sufficiently relevant to the reason why the Claimant was dismissed.[42]Secondly, I have taken into account not just the emails and documents which show the alleged misconduct (for example, the document where the Claimant had compared the Director of Immigration Enforcement to Himmler dated 12 September 2023) but also a witness statement from the dismissing officer, Mr Saggo, where he set out that the Claimant’s misconduct was the reason for the dismissal. I have also taken into account the evidence from Mr Saggo that he was not aware of the alleged protected disclosures relating to Issues 2 and 3 until he became aware of the Employment Tribunal claim. I have not seen anything at this stage which contradicts that evidence. I also noted that Mr Saggo does not appear to have been involved in any of matters about which the Claimant has complained or involved in any of the prior disciplinary or grievance procedures.[43]I was not persuaded by the Claimant’s argument that Mr Saggo was not of sufficient intellect of act independently and so the decision must have been made by others before the disciplinary hearing even started. I did not see any evidence which supported this assertion.[44]In terms of protected disclosures relating to Issue 1, Mr Saggo accepted in his witness statement that he has some knowledge of the Claimant’s wider concern, but I have not seen anything which suggests he was specifically aware of what the Claimant had set out in the meeting with Sue Bentley or Carla Johnson for example.[45]Thirdly, I have taken into account the timing of the alleged disclosures and the timing of the Claimant’s dismissal. The alleged protected disclosures, which relate to Issue 1, related to events in 2020/2021, and Issue 2 relates to events in April 2022. These events therefore were both some years prior to the Claimant’s dismissal. The alleged disclosure relating to Issue 3 occurred after the disciplinary process had started.[46]I have concluded that the Claimant has not reached the high threshold of showing that his claim for automatic unfair dismissal on grounds of having made a protected disclosure has a pretty good chance of success.[47]For these reasons, the Claimant’s application for interim relief is not well founded and is dismissed. Approved by
Introduction
[1]On 18 November 2024, I heard the Claimant’s application for interim relief. At the end of the hearing, I gave an oral judgment and informed the Claimant that his application had not been successful. The Claimant requested written reasons at the hearing, and they were sent to the parties on 30 January 2025.[2]On 16 February 2025, the Claimant applied for the judgment to be reconsidered in light of new developments. Attached to the email he sent to the Employment Tribunal was a document titled Reconsideration Request, and Annexes 1, 2, 3a, 3b, and 4.[3]In the document titled Reconsideration Request, the Claimant set out that it had come to his attention after the hearing on 18 November 2024 that the Respondent had submitted two false documents in the bundle for the interim relief hearing. The first was an undated document said to have been written by Mark Osborne. The Claimant said this document was put forward by the Respondent to suggest the Claimant’s complaint had been investigated between April and July 2022. The second was a document which was said to have been drafted by Permanent Secretary, Sir Matthew Rycroft. The Claimant said this document was put forward by the Respondent to suggest the Claimant’s complaint had been addressed satisfactorily. In his Reconsideration Request, the Claimant says he does not believe he received either of these communications between 4 April and 31 July 2022, and therefore either the documents were drafted after that period or were not drafted by Mr Osborne and Sir Rycroft, but by others who work for the Respondent. The Claimant suggested the Respondent submitted false documents to mislead the Tribunal, which the Claimant says is a criminal act and a breach of the Fraud Act 2006. The Claimant says he has sought access to his laptop so that he can prove the documents were never sent to him, but the Respondent has denied him access.[4]The Claimant has requested the Respondent agrees to an Independent Digital Forensic Examiner undertaking an examination of the Claimant’s IT profile, along with the IT profiles of Sir Rycroft, Mr Osborne, and the IT profiles of any other employee who may be involved in this matter. If the Respondent does not agree to this, the Claimant asks the Tribunal to strike out the Respondent’s Response and to vary the judgment on interim relief to be in his favour. He has also asked the Tribunal to order the Respondent to provide access to his former workplace laptop.[5]The Claimant also wrote that on 3 January 2025 he notified the Tribunal that he would not be available during the period 28 January 2025 to 10 February 2025 as he was abroad, for a commitment, during this period. The written reasons were sent to him on 30 January 2025 when he was away, and he was unable to respond until he returned. He therefore requested that the 14 day deadline for reconsideration be extended. The relevant Rules and case law[6]Rules 68 to 70 of the Employment Tribunals Rules of Procedure 2024 set out the procedure for tribunals to reconsider judgments: “68.—(1) The Tribunal may, either on its own initiative (which may reflect a request from the Employment Appeal Tribunal) or on the application of a party, reconsider any judgment where it is necessary in the interests of justice to do so. (2) A judgment under reconsideration may be confirmed, varied or revoked. (3) If the judgment under reconsideration is revoked the Tribunal may take the decision again. In doing so, the Tribunal is not required to come to the same conclusion. Application for reconsideration 69. Except where it is made in the course of a hearing, an application for reconsideration must be made in writing setting out why reconsideration is necessary and must be sent to the Tribunal within 14 days of the later of—(a) the date on which the written record of the judgment sought to be reconsidered was sent to the parties, or(b) the date that the written reasons were sent, if these were sent separately. Process for reconsideration 70.—(1) The Tribunal must consider any application made under rule 69 (application for reconsideration). (2) If the Tribunal considers that there is no reasonable prospect of the judgment being varied or revoked (including, unless there are special reasons, where substantially the same application has already been made and refused), the application must be refused and the Tribunal must inform the parties of the refusal. (3) If the application has not been refused under paragraph (2), the Tribunal must send a notice to the parties specifying the period by which any written representations in respect of the application must be received by the Tribunal, and seeking the views of the parties on whether the application can be determined without a hearing. The notice may also set out the Tribunal’s provisional views on the application. (4) If the application has not been refused under paragraph (2), the judgment must be reconsidered at a hearing unless the Tribunal considers, having regard to any written representations provided under paragraph (3), that a hearing is not necessary in the interests of justice. (5) If the Tribunal determines the application without a hearing the parties must be given a reasonable opportunity to make further written representations in respect of the application.[7]The 14 day time limit may be extended by virtue of the Tribunal’s general power to do so under Rule 5. (Rule 5: The Tribunal may, on its own initiative or on the application of a party, extend or shorten any time limit specified in these Rules or in any decision, whether or not (in the case of an extension) it has expired). Such an application can be granted even where the initial 14 day time limit has already expired. There is no requirement that the party should demonstrate that compliance with the time limit was ‘not reasonably practicable’ or that it is ‘just and equitable’ to extend the time limit.[8]In Outasight VB Ltd v Brown [2015] ICR D11, EAT, Her Honour Judge Eady QC accepted that the wording ‘necessary in the interests of justice’ in what is now rule 69, under the current Rules, allows employment tribunals a broad discretion to determine whether reconsideration of a judgment is appropriate in the circumstances. However, this discretion must be exercised judicially, ‘which means having regard not only to the interests of the party seeking the review or reconsideration, but also to the interests of the other party to the litigation and to the public interest requirement that there should, so far as possible, be finality of litigation’.[9]In Stevenson v Golden Wonder Ltd [1977] IRLR 474, EAT, Lord McDonald said (regarding the review provisions under an earlier version of the rules) that they were ‘not intended to provide parties with the opportunity of a rehearing at which the same evidence can be rehearsed with different emphasis, or further evidence adduced which was available before’. Extension of time for application[10]While the Claimant’s application for reconsideration was made late, the Claimant did write to the Tribunal in advance to say that he would be unavailable from 28 January 2025 to 10 February 2025, albeit his email to the Tribunal and the Respondent did not say he would be abroad. The written reasons were sent to the parties on 30 January 2025, which meant any application for reconsideration was due by 13 February 2025. The Claimant made his application on 16 February 2025, which is just three days outside the 14 day time limit. In the circumstances, and particularly in light of the fact that an extension of just three days is required, an extension of time is granted. The Claimant’s application for reconsideration of the judgment will be considered. Reasons for refusal[11]The Claimant’s application for reconsideration is refused as there is no reasonable prospect of the original judgment being revoked or varied.[12]I am not persuaded that the fact that the Claimant does not believe he received either of the two letters in question between 4 April and 31 July 2022 indicates that the documents were forged or were intended to mislead the Tribunal. In reaching my decision regarding interim relief, I did not form a view about whether either document was or was not received by the Claimant between April and July 2022. Neither of these documents played a part in my decision to reject the Claimant’s application for interim relief. My focus was on whether the Claimant had a pretty good chance of success when it came to persuading a Tribunal that he had made a protected disclosure or protected disclosures, and whether he had a pretty good chance of success with a claim for automatic unfair dismissal on grounds of having made a protected disclosure. I did not place any weight on what steps the Respondent had or had not taken to investigate the Claimant’s complaints, as this was not relevant to the issues I was considering.[13]For these reasons, the Claimant’s application for reconsideration is refused as there is no reasonable prospect of the original judgment being revoked or varied. In reaching this decision, I have also had regard to the Respondent’s interests and the public interest requirement that there should, so far as is possible, be finality of litigation. Approved by