Ms L Douglas v Epsom and St Helier University Hospitals NHS Trust: 6014701/2026

EMPLOYMENT TRIBUNALS

Case No 6014701/2026, 6041311/2025

Between

Ms L DouglasClaimant

Epsom and St Helier University Hospitals NHS TrustRespondent

Before

Employment Judge Cawthray

In person for claimant

Ms. Clayton (instructed by Counsel) for respondent

Date 21 May 2026

JUDGMENT

The Claimant’s application for interim relief under section 128 of the Employment Rights Act 1996 is refused.

REASONS

[1]In terms of background, the Claimant has submitted three claims as set out below.

[2]Claim 1 – 6041311/2025 – submitted on 10 November 2025. A case management preliminary hearing is scheduled for 13 January 2027 and a four day final merits hearing is scheduled for 3 – 7 July 2029. Although the allegations are not yet clear, it appears to be claim for race discrimination and whistle blowing detriment.

[3]Claim 2 – 6014701/2026 – submitted on 24 April 2026. This claim contains an application for interim relief. The parties were sent the Notice of Hearing to consider the for application under this claim, Claim 2. On review of the documents provided by the parties it appeared that the formatting of the ET1 held by the Respondent was different to the ET1 on the Tribunal’s electronic file. The reason for this is unknown, but I provided Ms. Clayton with the full text at section 8.2 of the ET1, which was the section necessary in relation to the interim relief application. I have asked the administrative staff to send a full copy. No other hearings have been listed in relation to Claim 2. The deadline for submission of the response is 5 June 2026.

[4]Claim 3 – 6014848/2026 – submitted on 26 April 2026. I asked the Claimant why she had submitted this claim, two days after Claim 2, and she said she has been taking legal advice behind the scenes and was told to. Box 8.2 in this ET1 form is blank, but a three page particulars of claim was attached, and at paragraph 8(f) of the attachment it states an order for interim relief is sought. It does not appear to have been identified by the Tribunal’s administrative staff that the Claimant was making an application for interim relief in Claim 3. A case management preliminary hearing has been listed for 28 February 2028 and the deadline for submission of the response is 25 May 2026.

[5]It does not appear that any of the claims have been linked by the administrative staff. We discussed case management at the end of the hearing today, as set out below.

[6]The parties agreed that the basis of the application for interim relief in Claims 2 and 3 was the same, and that this hearing today would determine the application.

[7]The Claimant has made an application for Interim Relief made under section 128 of the Employment Rights Act 1996 (“ERA”), pending the determination of her claim for automatic unfair dismissal for having made a protected disclosure brought under section 103A ERA.

[8]By a claim form presented on 24 April 2026, Claim 2, (and Claim 3) the Claimant claims (amongst other matters) that she was automatically unfairly dismissed by the Respondent for making a protected disclosure pursuant to section 103A of the Employment Rights Act (the “ERA”).

[9]The Claimant states the effective date of termination was 24 April 2026, this appears to be agreed. An application for interim relief must be made within 7 days immediately following the effective date of termination. This deadline was met.

Procedure

[10]At the start of the hearing today I checked if any reasonable adjustments were required, and none were requested. Breaks were taken during the hearing.

[11]Almost 90 minutes was spent trying to ascertain what documents were needed for the hearing today and what had been sent where. A number of documents were sent to me during the hearing.

[12]In summary, the Respondent provided a 399-page bundle and two witness statements, for Nonhlanhla Dube and Badriya Maghrabi. Ms. Clayton had also produced a written skeleton.

[13]The Claimant had provided a 19 page bundle which contained comments and extracts of documents.

[14]I explained the process that would be undertaken, including the legal test and that I would not be hearing oral evidence, in accordance with Rule 94 of The Employment Tribunal Procedural Rules.

[15]Both parties gave oral submissions and directed me to the documents that they considered to be key. I read those documents. I was also shown a video that the Claimant had sent to her manager on 19 June 2025. Submissions did not finish until approximately 1.00pm and therefore I was unable to explain my decision orally.

The Issues

[16]As noted above, I explained at the outset of the hearing, and before the parties gave submissions, that for the Claimant’s application of interim relief to succeed, I need to be satisfied, as regards each of the limbs of the Claimant’s claim, that it is likely that, at the final hearing, the Tribunal will find in the Claimant’s favour and that her claim will succeed.

[17]Due to the fact the files were confused, and there had been the submission of two recent claims, I asked the Claimant to confirm the precise alleged protected disclosures relied on. The Claimant confirmed she relied on the following, as set out in section 2 of the ET1 for Claim 2. “On 19 June 2025, I performed my professional duty of candour by reporting serious concerns regarding patient safety and staff negligence within the Radiology department. I made this protected disclosure directly to my manager, providing clear video footage as evidence of malpractice and negligence involving senior radiographer.” “On 19 September 2025, I made a formal disclosure to Duncan Paterson, Operations Manager for the CQC, sending him evidence that supported my claims of negligence and risks to patient safety. As a result of my report, a referral was made to the London Borough of Sutton (LBS) to investigate the conduct of the senior radiographers involved.”

[18]For the Claimant to succeed at final hearing in her claim under section 103A ERA, the Tribunal will have to find each of the following: 1. That the Claimant made the alleged disclosure relied on; 2. That it amounted to a protected disclosure within the meaning of section 43A ERA; 3. That the reason, or principal reason for dismissal was the Claimant having made the protected disclosure relied on.

The Law

[19]The Employment Tribunal Procedural Rules 2024 state: Interim relief proceedings 94. When the Tribunal hears an application for interim relief (or for its variation or revocation) under section 161 or 165 of the Trade Union and Labour Relations (Consolidation) Act 1992 or section 128 or 131 of the Employment Rights Act 1996, rules 52 to 54 (preliminary hearings) apply to the hearing and the Tribunal must not hear oral evidence unless it directs otherwise Interim relief

[20]The statutory provisions concerning interim relief are set out in the Employment Rights Act 1996 as follows: 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 the Trade Union and Labour Relations (Consolidation) Act 1992, or (b) that the reason (or, if more than one, the principal reason) for which the employee was selected for dismissal was the one specified in the opening words of section 104F(1) and the condition in paragraph (a) or (b) of that subsection was met, may apply to the tribunal for interim relief.

(2) The tribunal shall not entertain an application for interim relief unless it is presented to the tribunal before the end of the period of seven days immediately following the effective date of termination (whether before, on or after that date).

(3) The tribunal shall determine the application for interim relief as soon as practicable after receiving the application.

(4) The tribunal shall give to the employer not later than seven days before the date of the hearing a copy of the application together with notice of the date, time and place of the hearing.

(5) The tribunal shall not exercise any power it has of postponing the hearing of an application for interim relief except where it is satisfied that special circumstances exist which justify it in doing so. 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— (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 the Trade Union and Labour Relations (Consolidation) Act 1992, or (b) that the reason (or, if more than one, the principal reason) for which the employee was selected for dismissal was the one specified in the opening words of section 104F(1) and the condition in paragraph (a) or (b) of that subsection was met. (2) The tribunal shall announce its findings and explain to both parties (if present)— (a) what powers the tribunal may exercise on the application, and (b) in what circumstances it will exercise them. (3) The tribunal shall ask the employer (if present) whether he is willing, pending the determination or settlement of the complaint— (a) to reinstate the employee (that is, to treat him in all respects as if he had not been dismissed), or (b) if not, to re-engage him in another job on terms and conditions not less favourable than those which would have been applicable to him if he had not been dismissed. (4) For the purposes of subsection (3)(b) “terms and conditions not less favourable than those which would have been applicable to him if he had not been dismissed” means, as regards seniority, pension rights and other similar rights, that the period prior to the dismissal should be regarded as continuous with his employment following the dismissal. (5) If the employer states that he is willing to reinstate the employee, the tribunal shall make an order to that effect.

(6) If the employer— (a) states that he is willing to re-engage the employee in another job, and (b) specifies the terms and conditions on which he is willing to do so, the tribunal shall ask the employee whether he is willing to accept the job on those terms and conditions.

(7) If the employee is willing to accept the job on those terms and conditions, the tribunal shall make an order to that effect.

(8) If the employee is not willing to accept the job on those terms and conditions— (a) where the tribunal is of the opinion that the refusal is reasonable, the tribunal shall make an order for the continuation of his contract of employment, and (b) otherwise, the tribunal shall make no order.

(9) If on the hearing of an application for interim relief the employer— (a) fails to attend before the tribunal, or (b) states that he is unwilling either to reinstate or re-engage the employee as mentioned in subsection (3), the tribunal shall make an order for the continuation of the employee’s contract of employment.

[21]An application for interim relief will be granted where, on hearing the application, it appears to the Tribunal that it is likely that on determining the complaint to which the application relates, a tribunal will find that the reason for dismissal is the one specified (s.129(1) ERA). The meaning of the word “likely” in section 129(1) has been considered in a number of authorities.

[22]In order to determine ‘whether it is likely’ the claimant will succeed at a full hearing, the EAT said in London City Airport v Chacko

2013 IRLR 610

, that this 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 will involve a less detailed scrutiny than would happen at a final hearing. My task is to assess how the matter appears to me, and Rule 94 states the tribunal shall not hear oral evidence unless it directs otherwise. I am also to avoid making findings of fact that could cause difficulty to a tribunal undertaking the final hearing of the case. 23. ‘Likelihood’ has been interpreted to mean ‘a pretty good chance of success’ at the full hearing. In Taplin v CC Shippam Ltd

[1978] ICR 1068

the EAT set out that it meant a “higher degree of certainty in the mind of the tribunal than that of showing that he just had a “reasonable” prospect of success”. It went on to suggest that the tribunal “should ask themselves whether the applicant has established that he has a “pretty good” chance of succeeding in the final application to the tribunal”.

[24]In Ministry of Justice v Sarfraz

[2011] IRLR 562

the EAT stated “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”.

[25]The burden of proof was intended to be greater than that at a full hearing, where the Tribunal only needs to be satisfied on the balance of probabilities that the claimant has made out his/her case - or 51% or better. A pretty good chance is something nearer to certainty than mere probability.

[26]The Employment Appeal Tribunal reaffirmed the proposition that a claimant for interim relief must demonstrate a ‘pretty good chance’ of success at trial, the Employment Appeal Tribunal remarked in Dandpat v University of Bath

UKEAT/0408/09

, at para 20.: “We do in fact see good reasons of policy for setting the test comparatively high in the case of applications for interim relief. If relief is granted the [employer] is irretrievably prejudiced because he is obliged to treat the contract as continuing, and pay the [employee], until the conclusion of proceedings: that is not consequence that should be imposed lightly”.

[27]The likely to succeed test applies to all elements of the claim (Hancock v Ter-Berg

UKEAT/0138/19

). In a claim of automatic unfair dismissal under section 103A ERA, this means satisfying the test in respect of all the elements relating to protected disclosures in part IVA ERA.

[28]Claimants in complicated, long running disputes can obtain interim relief, it is not just for simple cases (Raja v Secretary of State for Justice EAT 0364/09). Automatic unfair dismissal

[29]The statutory provisions are contained in the Employment Rights Act 1996: 103A Protected disclosure. 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. 43A Meaning of “protected disclosure In this Act a “ protected disclosure ” means a qualifying disclosure (as defined by section 43B) which is made by a worker in accordance with any of sections 43C to 43H. 43B Disclosures qualifying for protection. (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—(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,

(d) that the health or safety of any individual has been, is being or is likely to be endangered,

(e) that the environment has been, is being or is likely to be damaged, or

(f) that information tending to show any matter falling within any one of the preceding paragraphs has been, is being or is likely to be deliberately concealed. (2) For the purposes of subsection (1), it is immaterial whether the relevant failure occurred, occurs or would occur in the United Kingdom or elsewhere, and whether the law applying to it is that of the United Kingdom or of any other country or territory. (3) A disclosure of information is not a qualifying disclosure if the person making the disclosure commits an offence by making it. (4) A disclosure of information in respect of which a claim to legal professional privilege (or, in Scotland, to confidentiality as between client and professional legal adviser) could be maintained in legal proceedings is not a qualifying disclosure if it is made by a person to whom the information had been disclosed in the course of obtaining legal advice. (5) In this Part “ the relevant failure ”, in relation to a qualifying disclosure, means the matter falling within paragraphs (a) to (f) of subsection (1). 43C Disclosure to employer or other responsible person. (1) A qualifying disclosure is made in accordance with this section if the worker makes the disclosure - (a) to his employer, or (b) where the worker reasonably believes that the relevant failure relates solely or mainly to— (i) the conduct of a person other than his employer, or (ii) any other matter for which a person other than his employer has legal responsibility, to that other person. (2) A worker who, in accordance with a procedure whose use by him is authorised by his employer, makes a qualifying disclosure to a person other than his employer, is to be treated for the purposes of this Part as making the qualifying disclosure to his employer.

[30]Under section 103A, a dismissal is automatically unfair if “the reason (or, if more than one, the principal reason) for the dismissal is that the employee made a protected disclosure”. Whether the dismissal flows from the disclosure is a question of causation. In the present case, it is for the Claimant to show that the predominant causative basis for her dismissal was for making protected disclosure.

[31]Section 43B ERA defines a qualifying disclosure as any disclosure of information which is made in the public interest and which, in the reasonable belief of the worker making the disclosure, tends to show one or more of the matters set out in sub-paragraphs a-f.

[32]For an application for interim relief to be successful, a Tribunal needs to be satisfied on the evidence before it that it is likely that each element of the s.43B definition is likely to be met and that the final Tribunal is likely to find that the principal reason for dismissal was the disclosure.

[33]In Chesterton Global Ltd. and Anr. v Nurmohamed

[2017] IRLR 832

CA, Lord Justice Underhill said, at para 37: 1. “... In a whistleblower case where the disclosure relates to a breach of the worker's own contract of employment (or some other matter under s.43B(1) where the interest in question is personal in character), there may nevertheless be features of the case that make it reasonable to regard disclosure as being in the public interest as well as in the personal interest of the worker…”

[34]In Kong v. Gulf International Bank (UK) Ltd [2022] WCA Civ 941 the Court of Appeal upheld the decision that it was not incorrect for a Tribunal to find that the claimant’s dismissing managers were not motivated by the protected disclosure but by the view that they took of the claimant’s conduct which they considered to be an unacceptable personal attack and reflective of a wider problem with her interpersonal skills. Summary/Claimant’s case/Conclusions

[35]I make no findings of fact, but it is helpful to set out a brief summary of the Claimant’s case and what the Respondent says about it.

[36]I reiterate that I heard no oral evidence and I do not seek to make findings of fact, but to set out my expeditious summary assessment, doing the best I can with the untested evidence advanced by each party.

[37]The Claimant started working at the Respondent as a Radiology Helper on 29 July 2024.

[38]It is agreed that the Claimant was suspended on 24 September 2025 and a disciplinary hearing took place on 22 and 24 April 2026. A letter setting out that the Claimant had been dismissed for gross misconduct, with her employment ending on 24 April 2026, was sent on 29 April 2026.

[39]The Claimant alleges that she made two protected disclosures, the first on 19 June 2025 to her line manager and the second on 19 September 2025 to CQC.

[40]In relation to the alleged disclosure on 19 June 2025 it is agreed that on 19 June 2025 the Claimant sent a video to her line manager, Richard Mayola, by WhatsApp page 353. The WhatsApp message refers to how she felt she was spoken to in relation to annual leave and the last paragraph states: “I am forwarding you one of the multiple incidents, where staff professionalism, patient safety, and duty of care have not been adhered to.” The video shows a person asleep in an office at his desk, and another person at a computer working whilst looking out into the MRI scanning room. This video was produced by the Claimant and she recorded her colleagues on 25 February 2025.

[41]The issue for me to determine was whether the Claimant’s automatic unfair dismissal claim was likely to succeed at the substantive hearing. I considered both parties submissions in full in reaching my conclusions, and the specific documents to which I was referred.

[42]I deal first with determining whether it is likely that the Claimant will show that she made a protected disclosure/s as defined by s.43 ERA and then go on to consider whether it is likely that she will show that she was dismissed for making a protected disclosure.

[43]In relation to the first disclosure, 19 June 2025, the Respondent accepts that there was a conveyance of information. I therefore considered whether the Claimant was likely to show that the alleged disclosure was made in the public interest, and whether the Claimant had a reasonable belief in that.

[44]I understood it is accepted that the Claimant made the video of a colleague sleeping in February 2025. In submissions the Claimant said she had been raising matters orally with her line manager regarding her concerns about safety in the workplace and her manager had asked her for evidence. The contemporary documents indicated that around 19 June 2025 the Claimant was concerned about her treatment in relation to a refusal of an annual leave request. The Respondent submitted that the Claimant has not met the threshold of demonstrating that it was likely that she will prove the disclosure was made in the public interest, and that she had a genuine belief. Give the delay in sending the video to management of some four months, and the emails and text around the message regarding leave, my expeditious summary assessment in relation to the alleged disclosure on 19 June 2025 is that I cannot reasonably conclude that it is “likely” that the alleged disclosure on 19 June 2025 will meet the test. It may meet the test, or it may not, which is not sufficient to be grant interim relief.

[45]In relation to the alleged disclosure to the CQC on 19 September 2025. In the Respondent’s bundle, at page 73 and the Claimant’s bundle at unpaginated page 7, there is an email from the CQC to the Claimant informing her that a safeguarding referral had been made and asked the Claimant for more information. The Claimant’s email of 19 September 2025, which she relies on as her written alleged protected disclosure has not been provided to the Tribunal, or the Respondent. I asked the Claimant why she had not provided the email, which is plainly in her possession. She said that she had been rushed to provide the documents. For completeness, it is noted that the Claimant has provided part of an email she sent to the CQC on 16 September 2025, but this is not the document she relies on as her second alleged protected disclosure. The Claimant also said she did not provide the full email as she has been rushed.

[46]I do not consider the Claimant’s comments in relation to the non-provision of the email dated 19 September 2025, or indeed the partial provision of the email dated 16 September 2025, to be a reasonable explanation. The email she says she sent on 19 September 2025 as relied on as an alleged protected disclosure is clearly a crucial document. The Claimant has been aware of her application since 24 April 2025, and of course has had access to her own emails throughout. The Claimant has sent a number of different emails and documents to the Tribunal for the hearing today.

[47]Without seeing the email dated 19 September 2025, which is relied on as the Claimant’s second protected disclosure, I simply cannot form any view on whether it is likely the Clamant will succeed in showing that it was a protected disclosure. Accordingly, I cannot conclude that it is “likely” that the alleged disclosure on 19 September 2025 will meet the test. It may meet the test, or it may not, which is not sufficient to grant interim relief.

[48]Further, there is a dispute about whether the reason, or principal reason, for dismissal was because the Claimant made a protected disclosure.

[49]The Claimant says that she was dismissed because she made the protected disclosures. In submissions, which were considered in full and only noted in summary here, the Claimant pointed to what she says is the close proximity between her alleged disclosure to the CQC on 19 September 2025 and her suspension on 24 September 2025, that initially there were two allegations put to her, that the police found no case to answer in relation to an investigation into harassment, there is differing CCTV footage and that witness statements in the disciplinary investigation were not signed.

[50]The Respondent says the Claimant’s employment was terminated for gross misconduct, with four out of five allegations relating to events that took place in September 2025 being upheld. The Respondent submits there was no action taken against the Claimant following her alleged disclosure in June 2025 and that the Respondent, at no time has been contacted by the CQC, and was not aware of the alleged disclosure to the CQC on 19 September 2025 until the Claimant told Respondent after she was told she was being suspended on 24 September 2025. Further, the Respondent directed me to the disciplinary investigation documents and the dismissal letter.

[51]The position, based on an initial assessment of the key documents, appears to be that the Claimant facilitated her partner to enter into a private part of the Respondent’s premises, an incident occurred, advice from HR was sought before the CQC emailed the Claimant asking for more information. the Claimant was suspended on 24 September 2025, in relation to two allegations, further allegations were added, an investigation took place, and the Claimant was dismissed after a disciplinary hearing that took place on 22 and 24 April 2026 where Ms. Maghrabi found the Claimant had committed gross misconduct. Her statement summarises the findings for each of the five allegations and explains that she has not seen the video the Claimant sent on 19 June 2025 and only became aware of the matter from comments the Claimant made during the disciplinary hearing and the decision to dismiss was not related to the Claimant sending the video to Mr. Mayola on 19 June 2025.

[52]I note, as an observation only, that any police investigation is a matter for the police and is different process to any internal employment related investigation into gross misconduct.

[53]There is significant factual dispute. The reason for the Claimant’s dismissal is a matter that will be needed to be tested by the evidence.

[54]Undertaking an expeditious summary assessment based on the untested evidence available to me, I conclude that the Claimant might show that it was the alleged protected disclosure/s that caused her dismissal or, equally, the Respondent might show that it was the finding that the Claimant had committed gross misconduct. Either reason might be correct. Not having heard any evidence, it cannot be said, at this stage of the proceedings, that it is near to certain or that the Claimant has a pretty good chance of success on this element of her claim. There is a potentially very reasonable (but as yet untested) explanation by the Respondent.

[55]The application for interim relief is therefore refused.

[56]As noted above, there was discussion about the management of the three claims.

[57]The Claimant must, by 28 May 2026, write to the Tribunal and the Respondent to confirm if she is withdrawing Claim 3 or not. During discussions today she said Claim 2 was the main claim and Claim 3 was a duplicate. The Claimant has been given an opportunity to consider whether she wishes to withdraw Claim 3 or not.

[58]If Claim 3 is withdrawn, Claims 1 and 2 will be consolidated. If Claim 3 is not withdrawn, all three claims will be consolidated. I have asked the administrative staff to link the three claims.

[59]The deadline for the submission of response to Claim 3 is presently 25 May 2026, in view of the above Order, I have extended the deadline to 5 June 2026 to submit the response. Therefore, if Claim 3 is not withdrawn, the responses for Claims 2 and 3 must be presented by 5 June 2026.

[60]The case management preliminary hearing scheduled to take place on 13 January 2027 will deal with Claims 1 and 2, and also Claim 3 if it is not withdrawn. I have vacated the case management preliminary hearing scheduled in Claim 3.

[61]I explained to the Claimant how deposit orders worked, and that an Employment Judge can make a deposit order at the case management preliminary hearing if they consider it appropriate. Ms. Clayton does not have any instructions on whether any applications in relation to the claims will be made, but I informed her that if the Respondent makes any applications it should do so in good time in case any changes to the current case management preliminary hearing listing is needed.

[62]I reminded the parties to ensure that they used the portal to contact the Tribunal. Approved by: Employment Judge Cawthray Date: 21 May 2026 Date: 29 May 2026 Notes All judgments (apart from judgments under Rule 51) and any written reasons for the judgments are published, in full, online at https://www.gov.uk/employment-tribunal-decisions shortly after a copy has been sent to the claimants and respondents. If a Tribunal hearing has been recorded, you may request a transcript of the recording. Unless there are exceptional circumstances, you will have to pay for it. If a transcript is produced it will not include any oral judgment or reasons given at the hearing. The transcript will not be checked, approved or verified by a judge. There is more information in the joint Presidential Practice Direction on the Recording and Transcription of Hearings and accompanying Guidance, which can be found here: www.judiciary.uk/guidance-and-resources/employment-rules-and-legislation-practice-directions/