Mr Z ZhangClaimantLNRS Data Services LtdRespondent
Before
: Employment Judge Norris, sitting aloneIn person for claimantMs A Greenley (instructed by Counsel) for respondentDate 23 June 2025
REASONS
[1]Introduction1.1 The Claimant worked as a Senior Visual or UX Designer for the Respondent, from 19 April 2022 until his dismissal, which the Respondent says was effective on 30 April 2025. (Note: the original claim was brought against “RELX, LexisNexis Risk Solutions”, but the Claimant accepted for the purpose of this hearing only that the correct Respondent is as set out above. Further, the Claimant says in the claim form that his employment ended on 15 April 2025 but there was no argument before me that anything turned on this and it is therefore not necessary for me to make a definitive finding).1.2 The Claimant had not entered ACAS Early Conciliation (EC) before submitting his claim form on 21 April 2025. He ticked the box to say that his claim only consists of a complaint of unfair dismissal which contains an application for interim relief (IR) and therefore did not require to enter EC. He claims IR on the basis that his dismissal was because he had made a protected disclosure, or more than one.[2]Interim relief hearing2.1 As is usual with IR applications, I have had to take the case on the basis of what is before the Tribunal, which was as follows:• An eight-page statement/submission document from the Claimant with an Annex bringing the total to 14 pages and a seven-page statement from Mr Ofer Misrach, Vice-President, Product Management and Global Leader of Product Platforms, to whom the Claimant reported at the date of his dismissal;• A 409-page bundle for the IR Hearing containing the statements referred to above, the pleadings (the Respondent had submitted an ET3 on 4 June 2025) and evidence relevant to the IR Hearing;• The Case Management Order of EJ Adkin, who was listed to hear this IR Hearing on 16 May 2025 but as the parties were not ready, converted it instead to a Preliminary Hearing (Case Management) (“PHCM”) and adjourned the IR Hearing to 6 June 2025;• A 13-page skeleton argument from the Respondent, updated for this IR Hearing, and a bundle of authorities running to 238 pages.2.2 We started at 10.14. I went through the documents before me and noted that I had read the bundle the evening before the Hearing. We discussed the basis on which the Claimant makes the application and then took a short comfort break. I heard submissions from the Claimant before the lunch break and from Ms Greenley, speaking to her skeleton argument on behalf of the Respondent, after lunch. The Claimant took the opportunity to make a short reply. 2.4 During the IR Hearing, the Claimant also emailed to the Tribunal clerk and to Ms Greenley a copy of his witness statement/submissions document annotated with responses to what the Respondent has said in its skeleton argument. Neither the Claimant nor Mr Misrach gave oral evidence on oath (Mr Misrach did not attend the Hearing in light of the time difference between the UK and the West Coast of the USA, where I am told he is based) so their evidence was not tested by the other party. 2.5 By the time we had finished submissions it was 15.50. In light of the shortness of the remaining time, I reserved my decision. While I have considered all the evidence before me, I only address what is essential to determine the IR application. I stress that on any matter in dispute, I make no findings of fact that are intended to bind the Tribunal at the full Hearing. 2.6 After the IR Hearing, the Claimant sent an email to the Tribunal clerk, copying in the Respondent’s representative, attaching an email that he had read out at the IR Hearing and on which he intended to rely. It was not necessary to hear submissions from the Respondent as to the admissibility of this document, in light of my findings below.[3]Relevant law3.1Section 128 Employment Rights Act 1996 (“ERA”) entitles a person to make an application for IR.3.2 Section 129 ERA sets out the procedure to be adopted by the Employment Tribunal before considering making such an order. Section 129(1) says that on hearing an employee’s application for IR, if it appears to the Employment Tribunal that it is likely on determining the complaint to which the application relates, the Employment Tribunal will find that the reason or if more than one the principal reason for dismissal is one of those specified, interim relief may be granted.3.3 The Claimant relies on section 103(A) ERA and the making of a protected disclosure, or more than one, which he says led to his dismissal.3.4 I have to be satisfied that it is “likely” the full tribunal will find that all the necessary elements are present for the Claimant to succeed, and in Taplin v Shipham Limited1, followed in a number of subsequent cases, the higher courts have said that this means “a pretty good chance of succeeding” not merely that the Claimant “could possibly win”; it is a significantly higher degree of likelihood than that. This is a high bar because, as Ms Greenley noted, there is a risk that the employer will be irretrievably prejudiced if it is required to treat the contract as continuing until the conclusion of the full hearing, without meeting the remit of the section.3.5 An application for IR thus generally requires an “expeditious summary assessment” of the untested evidence before the Employment Judge as to how the matter looks on the material - see for instance London City Airport v Chacko2. The EAT said in that case that the Employment Judge “must do the best they can with such material as the parties are able to deploy”. As was noted by Employment Judge Adkin when listing this hearing, the Tribunal therefore has to take an “impressionistic” view of the material presented. No evidence has been given on oath and so I have had to form that summary assessment of the material before me in order to form a view as to whether the Claimant is likely to succeed in each relevant part of his claim.3.6 It is also recognised generally that the timings for submission of the ET1 and the listing of the IR hearing in such a case are very tight, when considering that the case can take many months or even years to be disposed of fully. Often no appeal against dismissal has taken place by the date of the IR Hearing, and no ET3 yet submitted; in this case, there had been no appeal against dismissal though there was a response to the claim but this had only been submitted two days earlier. So the material before the Tribunal is of necessity much more limited than it will be at a seven-day full merits hearing at which oral evidence will be heard on oath. The judge at an IR hearing must not determine facts as though he or she was conducting that final hearing (see Raja v Secretary of State for Justice3).3.7 The Court of Appeal has said in Kuzel v Roche Products Limited4 that it is for the Claimant to show that there is a real issue as to whether the reason put forward by the Respondent was not the true reason. Further, as the EAT said in Eiger Securities LLP v Korshunova5, it is not enough for a 1 [1978] ICR 1068 2 [2013] IRLR 610 3 UKEAT/0364/09/CEA 4 [2008] EWCA Civ 380 CA[5]UKEAT/0149/16 protected disclosure to be in the employer’s mind at the time of dismissal. The question is whether the disclosure was the reason or the principal reason. 3.8 Finally, so far as is particularly relevant to this case, in considering whether interim relief is available at all, the Respondent relies on Bombardier Aerospace v McConnell & Ors6 in which the Court of Appeal (Northern Ireland) held it was not possible for a claimant to obtain interim relief in a redundancy case; rather, the Claimant must show that the redundancy process was entirely fabricated for the purposes of dismissing him, or that it was a sham. 4. Basis for the IR application4.1 The Claimant’s position is that in or around June 2024, he raised concerns about the protection of his data protection rights and specifically that his data, including health-related sensitive personal data, was being processed in the Philippines, i.e. outside the UK/EU’s jurisdiction and thus outside the remit of the GDPR. He said he had not been made aware of or given his permission for this processing. He spoke to an HR Business Partner, Ms Mowbray, and exchanged emails with her about the issue, in early June 2024. Ms Mowbray sent the Claimant a copy of the Respondent’s Privacy Policy. He was unhappy with her response and sought to raise it at a higher level, seeking to speak to “an internal jurist” who could address his concerns.4.2 On or around 11 June 2024 the Claimant submitted a “formal grievance and request for conciliation” in which he included allegations of bullying and discrimination, indicated that these had had severe impacts on his health and raised “Corporate Malpractices” relating to what he described as “serious non-compliance with data and privacy regulations (GDPR) within the Company”. He sought detailed responses from a “knowledgeable data officer”.4.3 On 24 June 2024, Ms Mowbray sent a further email to the Claimant, passing on the response from a colleague (full name and position not given). This response asked Ms Mowbray to convey to the Claimant the assurance that his personal data was adequately protected under the GDPR, citing an intragroup data transfer agreement as well as referring him to the Employee Privacy Notice (it is unclear, and does not matter for these purposes, if this is the same as the Privacy Policy to which Ms Mowbray had earlier referred).4.4 On 14 August 2024, the Claimant’s grievance of 11 June was rejected by Mr Buckey, Deputy General Counsel. Mr Buckley observes in the outcome letter that during the grievance conversation, which I gather took place on 20 June 2024, the Claimant had alleged that he had witnessed multiple instance of non-compliance with data protection laws and that he had evidence of such non-compliance, but did not share anything with Mr Buckley in the conversation that would substantiate it, and Mr Buckley had 6 [2008] IRLR 51 not, he said, seen anything that suggested the Claimant had experienced any retaliatory action for raising those concerns.4.5 At some point, the exact date of which is unclear but possibly in or around September 2024, the Claimant says he also discovered that the way in which the Respondent was processing other data was also not in accordance with the law. He gives an example in his statement/submission for this hearing that he was able to access the Respondent’s product development portal on his personal phone, using what he describes as simple, basic authentication. Once he had logged in to the portal, he was able to see “curated profiles of individuals being named as on the International Sanction list for certain crimes, sanction categories and associated PEP indexation”.4.6 On 11 September 2024, the Claimant wrote two letters to Mr Kelsey, Chief Executive Officer. The second is relevant for these purposes; it was headed “Protected disclosure” and set out details of what the Claimant described as “Inadequate Compliance with UK GDPR in Data Transfers”. He specifically referred again to the processing of his data in the Philippines. He also referred more generally to “Insufficient Client Data Protection” and claimed to have identified “glaring gaps in our data security practices” though without giving specifics. Ms Gaines, Deputy General Counsel and Compliance Officer, replied the following day indicating that she would be setting up a meeting to discuss the Claimant’s concerns.4.7 On 20 September, Ms Gaines emailed again to say that the first of the Claimant’s letters was to be treated as an out-of-time appeal against the rejection of his grievance. In respect of the second letter, she drew the Claimant’s attention again to the Employee Privacy Notice.4.8 The Claimant says that in his grievance and his letter to Mr Kelsey, he made protected disclosures and that as a result he was dismissed. He says that the reason on which the Respondent relies, namely redundancy, was not genuine and was a sham.4.9 The Respondents’ position is that the Business Services 2024 strategic plan, disseminated on 20 September 2024, envisaged the consolidation under Mr Mizrach of two different teams: “Dynamic Decisioning Platform” and “RiskNarrative”.4.10 On 28 January 2025, there was further change anticipated, pursuant to a proposal from Mr Woodberry, Senior Vice President Product Management and Analytics (and Mr Mizrach’s manager). Slides in the bundle before me show that four roles were identified, of which the Claimant’s was one, as being at risk of redundancy. Specifically in relation to the role of Senior Visual Designer, the rationale states: “There is currently less user experience related work on the RiskNarrative platform and on Compliance Lens than anticipated due to a focus on addressing back-end technical debt on the RiskNarrative platform and a change in priorities that will reduce the amount of user interface development on RiskNarrative going forward”. Mr Mizrach wrote to the Claimant on 10 March 2025, setting out the general business rationale and the specific extract from the slides above, putting his position at risk of redundancy and setting out the timetable for the consultation process which was to begin on 13/14 March and was envisaged to end on 10 April 2025. The Claimant was specifically referred to the Workday platform for vacancies within the Respondent and RELX.4.11 Consultation meetings took place on 14, 21 and 26 March and on 15 April 2025. At the last meeting the Claimant’s redundancy was confirmed. The Respondent says that the redundancy was the reason for the Claimant’s dismissal and that it was genuine. Discussion and Conclusions5.1 For convenience I take the areas of dispute in the order they are set out in the Respondent’s submissions, which was also the loose order in which we discussed the issues in the IR hearing: a) Genuine/sham nature of the redundancy situation i) I find that the Claimant has not shown he has a “pretty good chance” of showing the redundancy was not genuine or was a sham. ii) I have noted above that Mr Mizrach was appointed in September 2024 to lead the consolidation of two product teams and as such became the Claimant’s manager. Mr Mizrach’s witness statement sets out that in January 2025, he received Mr Woodberry’s instructions to enter a restructuring process in line with the slides to which I have referred above. He says he did not consider the Claimant’s role was “mission critical” and hence that it was not disruptive to remove that role from the structure. He says he was fortified in this conclusion by the fact that the Claimant had had quite significant absence for ill-health and other reasons in 2024/2025, without any immediate detrimental impact on deliverables. Consequently, he says in light of the requirement to carry out cost-cutting within the team, he had contributed to and agreed with the formulation of the rationale and proceeded to carry out the redundancy exercise. That is evidence of course open to challenge at the full Hearing but at this stage it cannot be said that it is an incredible explanation for his/the Respondent’s actions, as the Claimant suggests. iii) The Claimant has pointed to the retention of a contractor, an inaccurate summary of his role, a failure to pool others from across the wider organisation and a failure to offer him alternative roles within the Respondent or other group companies as demonstrating that the redundancy was not genuine. He appeared to be complaining in one of his submissions that the other three people whose roles were identified in the slides from January 2025 were of different seniority and pay and were not appropriate to be included in the pool with him; my understanding however was that they were not intended to be a pool at all, but were each in standalone roles which had all been identified as being potentially at risk. The Respondent’s reply during consultation indeed was that there was no requirement for the Claimant to be pooled with others and/or a selection matrix completed because it was his role (which only he did on a permanent basis as a contracted employee) that had been identified as at risk. iv) I made it clear to the Claimant in the IR hearing and repeat here that the above are all points that can be raised as part of his unfair dismissal claim. It is, for example, open to him to argue that there should have been a (different) pool for selection, with an objective scoring system, something he appears to have emphasised repeatedly during the redundancy consultation process. The Claimant is not assisted by his assertion that another employee who was also placed at risk of redundancy similarly raised concerns about a lack of pooling and the inaccurate summarising of her role. v) These factors do not, however, whether taken individually or together, suggest that the Claimant is likely to succeed at a Hearing in his argument that the redundancy exercise itself was a sham to punish him for having raised concerns, a point to which I return below. b) Did the Claimant make a protected disclosure (or more than one)? i) The Claimant says that he made disclosures of information that he reasonably believed showed the Respondent was failing to comply with legal obligations to which it was subject and that he reasonably believed were in the public interest. ii) I find that the Claimant is likely to show that he disclosed information in June 2024 to Ms Mowbray and to others that he believed showed the Respondent was failing to comply with its legal obligations in relation to the processing of personal data in the Philippines, by failing to ensure that there was an agreement in place to uphold GDPR protections and/or giving UK employees the option to have their data processed within the jurisdiction of the GDPR. He expressly refers in numerous places to the provisions of the GDPR and its jurisdiction and seeks, as I have said, to discuss the issue with an internal jurist when he perceives he has not had a satisfactory answer. iii) It appears likely that the Claimant will be able to show his subjective belief in the breach(es). Without hearing evidence or making any findings, I am prepared to accept for these purposes that the Claimant’s belief also remained objectively reasonable notwithstanding the reassurance that the Respondent sought to give in its emails. iv) While the predominant motive for the disclosure may well have been concern over the Claimant’s own data falling into the wrong hands (or even just not being processed in accordance with the law), I also note this does not preclude it from being “in the public interest”, per the Court of Appeal’s decision in Chesterton Global Limited v Murmohamed7. In his exchanges with Ms Mowbray, for instance, the Claimant says that data protection is a significant concern for himself “and many other employees” and/or (in the email to which I refer at 2.6 above) “UK citizens”. v) I consider (again without making any findings) that it is likely that the Claimant will be able to show this disclosure would encompass a large group of employees, in relation to a matter that directly affects a very important interest (the integrity of employees’ personal data as a result of data processing overseas) by a large and prominent alleged wrongdoer and that as such this was a protected disclosure. vi) As to the second September letter to Mr Kelsey, this repeats the allegations about GDPR in relation to the processing of communications and data in the Philippines without a compliant mechanism in place. I have already found for these purposes that the Claimant is likely to be able to show this is a protected disclosure, repeated in the September letter. vii) However, so far as the “Insufficient Client Data Protection” allegation is concerned, it is far from clear how this is said to disclose information (in the sense of facts rather than just opinions and/or allegations) that the Respondent is mishandling the data and/or has what are alleged to be “glaring gaps” in its data security practices. viii) While it identifies numerous legal obligations that the Claimant says are directly contravened by “crucial security vulnerabilities” and sets out the potential penalties for failure to comply with the relevant regulations, there is no detail behind that allegation. The document that the Claimant has sent to the Tribunal (referred to at paragraph 4.5 above) was not, on the face of it, sent to Mr Kelsey or anyone else at the Respondent. Without that, I am unable to say that the Claimant has a pretty good chance of showing that this was a protected disclosure. 7 [2017] EWCA Civ 979 c) Reason/principal reason for dismissal i) The Claimant does not have a pretty good chance of showing that the (principal) reason for his dismissal was the making of a protected disclosure (or more than one). ii) He has not shown that it is likely Mr Mizrach and/or Mr Woodberry were aware of the fact and/or details of the conversations and messages between the Claimant and Ms Mowbray, Mr Kelsey, Mr Buckley and/or Ms Gaines. Mr Mizrach accepts that he had heard the Claimant had complained about the Finance team in the Philippines processing his data, but had no further information about that. It does not appear to have been raised by the Claimant at any stage in the redundancy process until the end of the last consultation meeting by which time the decision to dismiss him had already been taken and conveyed to him. The stage at which Mr Mizrach knew, and the extent of his knowledge, about the Claimant’s disclosures (if they are shown to be protected) will be a matter of evidence at the full Hearing. iii) The material before me at the IR hearing does not suggest that the Respondent was materially alarmed by the Claimant raising the GDPR issue or that it even understood the client data protection issue as it is now put, let alone that any of the managers was minded to retaliate to the Claimant’s detriment in response. iv) On the face of it, the Claimant was one of four employees whose roles were affected by the redundancy process. He does not have a pretty good chance of being able to show the reason for that reorganisation and subsequent exercise was that he had made a protected disclosure, or more than one, six to nine months earlier.5.2 In the circumstances, the Claimant’s application for interim relief fails at the first hurdle because as he has failed to show there is a pretty good chance that the Tribunal will find the redundancy was a sham, interim relief is not available to him. In Bombardier, the Tribunal explained that this is because where an employer has ceased to carry on business due to redundancy (in the present case, where the employee’s role has ceased to exist due to redundancy) the remedy of continuation of employment would be of no value.5.3 However, if I am wrong on that, the Claimant’s application nonetheless fails because although I find he is likely to prove he made at least one protected disclosure, he has not shown there is a pretty good chance that the Tribunal will find his dismissal was because of that disclosure.
Discussion and Conclusions
[6]Application refused Overall therefore, on the evidence that I have seen, I am not in a position to say that the Claimant has a pretty good chance of succeeding in a claim that the reason or the principal reason for his dismissal was the making of a protected disclosure. The application for interim relief is therefore refused.