Mr S Wood v Bagnall & Morris Waste Services Ltd: 6017804/2025
JUDGMENT
[1]The claimant is likely to succeed in his claim that the principal reason for his dismissal was that he made one or more protected disclosures.[2]The claim for interim relief succeeded.[3]As section 129(9) Employment Rights Act 1996 applies, an order is made for the continuation of the claimant’s contract of employment in accordance with section 130 Employment Rights Act 1996.[4]The claimant’s contract of employment continues in force with the respondent in the ways set out in section 130(1) Employment Rights Act 1996 from 8 May 2025 until the determination or settlement of the claimant’s claim.[5]The amount which is to be paid by the respondent under section 130(2) Employment Rights Act 1996 is £667.45 per week for the period from 8 May 2025 until the determination or settlement of the claimant’s claim, save that no payment shall be due for the period up to 16 May 2025 as the claimant was paid in lieu of notice which equated to that period. Employment Judge Phil Allen 28 July 2025REASONS
Summary
[1]The claimant was employed by the respondent as an HGV driver from 19 March 2025. Whilst employed by the respondent the claimant made various disclosures to the respondent on a number of occasions. The last disclosure was made in an email of 11.34 am on 8 May 2025, sent before the start of the claimant’s working day. At 13.07 on the same day, the claimant was invited to a meeting. At a meeting held at 14.00 on the same day, the claimant was dismissed with immediate effect. The claimant claimed that the principal reason for his dismissal was because he made one or more protected disclosures, and he alleged that he had been automatically unfairly dismissed under section 103A of the Employment Rights Act 1996. He sought interim relief. The hearing was arranged to determine the interim relief application.Procedure
[2]This was an application for interim relief. Case No. 6017804/2025 2[3]The claimant represented himself at the hearing. No one attend from the respondent, and it was not represented at the hearing.[4]The hearing was conducted in-person at Manchester Employment Tribunal.[5]The claimant provided a bundle of documents for the hearing. No evidence was heard, but the claimant was given the opportunity to make submissions, and I asked questions of the claimant during the hearing.[6]I adjourned to consider my decision and after doing so, I returned and informed the claimant of my decision and the reasons for it. The claimant has subsequently sought written reasons and so they are provided in this document. After I returned, I raised with the claimant what would be a week’s pay for the purposes of the order, and I then made that part of the order in the light of what he said, and I ascertained. The reason for the amount awarded are included in these written reasons.Facts
[7]As this is an interim relief Judgment, I did not need to determine facts in the same way as if it had been a Judgment determining the final claim. The material facts as I considered them when reaching my Judgment in the interim relief application, are set out in more detail below. The key facts were that: 7.1. The claimant was employed from 19 March 2025 as an HGV driver; 7.2. The claimant was paid a performance bonus by the respondent each week during which he was employed, save for the week when he was unwell; 7.3. The claimant was sent a text message by Siobhan O’Rourke on 4 April which described the claimant as starting off with 35-40 jobs each day and building up. It was the claimant’s evidence that he was never set any other target or number of jobs; 7.4. The claimant had a short period of ill health during his employment; 7.5. The claimant had an accident in the vehicle driven for the respondent. It resulted in minor damage. A meeting was held about the accident with Darren, who was the person responsible for such issues, and Darren told the claimant that it was all fine and not to worry. He also said the respondent would not be reporting the accident to the third party and that the vehicle being driven by the claimant caused problems for all new drivers 7.6. The claimant alleged that he made protected disclosures to the respondent, as described in more detail below. The last disclosure was made in an e-mail of 11:34am on 8 May 2025 before the start of the claimant’s work on that day to Siobhan O’Rourke; 7.7. At 1:07pm on 8 May 2025 Siobhan O’Rourke texted the claimant and asked him to come to a probation review meeting; 7.8. At 2:00pm on 8 May the claimant was dismissed at a meeting; and Case No. 6017804/2025 3 7.9. The letter which confirmed the dismissal said only that the claimant was dismissed for performance during his probationary period. The claimant’s evidence was that he was told at that meeting that the reasons were absence, the accident, and not achieving 90 stops per shiftThe Law
[8]For the interim relief application, under section 129 of the Employment Rights Act 1996, the test was whether it appeared to me that it was likely that that the claimant’s claim would succeed.[9]Here the relevant claim was that of automatic unfair dismissal due to having made a protected disclosure, under section 103A of the Employment Rights Act 1996.[10]The test was whether it was likely that, when determining the complaint, the Tribunal will find that the principal reason for the dismissal of the claimant was that the claimant had made a protected disclosure.[11]In considering whether a claimant is likely to succeed, consideration must be given to all elements of the requisite test. To succeed in such a claim, the claimant must establish that it is likely to be found that he has been dismissed. Whether a protected disclosure is likely to be found to have been made and whether it is likely to be found that the making of such a disclosure (or disclosures) was the principal reason for the dismissal, are parts of the test to be applied. The claimant relied upon section 43B(1)(d) of the Employment Rights Act 1996 and asserted that when he made the disclosures he said he made, he reasonably believed that the health and safety of any individual, had been, was being, or was likely to be, endangered.[12]The test required me to carry out an expeditious summary assessment as to how the matter appeared on the material available, doing the best I could with the untested evidence advanced. That necessarily involved a far less detailed scrutiny of the parties’ cases than will ultimately be undertaken at the full hearing. I was not required to make findings of fact; I was required to make a decision on the likelihood of success based upon a broad assessment on the material available.[13]Likely to succeed has been explained in various different cases and it is that phrase I must consider, but it really means whether the claimant has a pretty good chance of success at a final hearing or requires something nearer to certainty than the mere balance of probability that is applied at the final hearing. Conclusions - applying the law to the facts[14]Whilst employed by the respondent the claimant made various disclosures to the respondent on a number of occasions, but in broad terms the disclosures fell into three categories.[15]Firstly, the claimant disclosed to the respondent that the Google Maps navigation system designed for cars was being used by the respondent for HGVs and that was dangerous. That disclosure was made on a number of occasions during the Case No. 6017804/2025 4 employment but importantly was last made in an e-mail of 11:34am on 8 May 2025 before the start of the claimant’s work on that day, to Siobhan O’Rourke.[16]Secondly, the claimant disclosed to the respondent that he was being asked to collect waste from schools during the time when people were leaving school. That disclosure was made from 29 April 2025.[17]Thirdly, the claimant disclosed that there were issues relating to dust and bins which had led to his own ill health and that was a disclosure made from 15 April 2025 onwards.[18]I noted that the claimant was paid a performance bonus by the respondent each week during which he was employed (save for the week when he was unwell).[19]The claimant had a short period of ill health during his employment.[20]The claimant had an accident in the vehicle driven for the respondent. It resulted in minor damage. Importantly, a meeting was held about the accident with Darren, who was the person responsible for such issues, and Darren told the claimant that it was all fine and not to worry. He also said the respondent would not be reporting the accident to the third party and that the vehicle being driven by the claimant caused problems for all new drivers.[21]At 1:07pm on 8 May 2025 Siobhan O’Rourke texted the claimant and asked him to come to a probation review meeting. I noted that that was sent just over two hours after the claimant’s last disclosure, something which I considered to be important. At 2:00pm on 8 May the claimant was dismissed at a meeting.[22]The letter which confirmed the claimant’s dismissal said only that he was dismissed for performance during his probationary period. The claimant’s evidence was that he was told at that meeting that the reasons were absence, the accident, and not achieving 90 stops per shift. The claimant did not believe those reasons were genuine.[23]I also noted that the claimant was sent a text message by Siobhan O’Rourke on 4 April which described the claimant as starting off with 35-40 jobs each day and building up. It was the claimant’s assertion/evidence that he was never set any other target or appropriate number of jobs.[24]No-one had entered a response on behalf of the respondent and therefore I did not have the benefit from the respondent of any facts that they wished to highlight.[25]Applying the law to those facts, I considered it to be likely that the claimant will be able to demonstrate that his disclosures about both the use of Google Maps and undertaking school visits at school leaving times, would succeed in being found to be protected disclosures. All of the elements of the requisite test appeared to me to be present and met, and it appeared to me to be likely that the claimant will be able to show that he made those disclosures in the public interest and that that belief was reasonable. Case No. 6017804/2025 5[26]I did not consider it likely, applying the test that I had to apply at the interim relief hearing, that the Tribunal will determine that the claimant’s disclosures about dust will be considered to be protected disclosures. They might, but based on the test as I had to apply it at the hearing, I did not think they would. The reason for that decision was that I did not think there was the requisite level of likelihood that the Tribunal will find the disclosure was made in the public interest, or at least will find that the claimant reasonably believed that and that the belief was reasonable, bearing in mind it was said in the context of the claimant’s own ill health.[27]Taking into account the other elements of the case, I found that the claimant’s claim was likely to succeed, where his dismissal occurred immediately after the claimant had made his last disclosure. That is, the last disclosure was made at 11:34am, the claimant was dismissed out of the blue at 2:00 pm (or, at least, out of the blue save for having been told at 1:07 pm that there was a meeting).[28]The reasons given by the respondent for dismissal, did not appear to me to be genuine and, on that basis, I thought the claimant was likely to succeed in proving that the disclosure(s) made was the principal reason for his dismissal. The performance reason appeared to be contradicted by the performance bonuses paid to the claimant. The reason given for failure to meet the requisite number of stops given in the meeting, appeared not to be supported by any documents and to have been inconsistent with the earlier email. There appeared to me to be no reason why a single short period of illness should result in the claimant’s dismissal, particularly in this case where he was dismissed on 8 May rather than at the end of the period of illness. The accident might have appeared to have been a reason for the dismissal of a probationary employee employed in a driving job, but I noted what was said to the claimant at the time and in the meeting that followed the accident, and as a result I did not find that that was likely to be found to have been the genuine reason for dismissal.[29]On that basis, the claimant proved what was required and the interim relief order was made. I highlighted that I was not determining the claim, I was simply dealing with the interim relief application. It will be for a different Employment Tribunal, at a later date, to determine whether the claim should in fact succeed.[30]Section 129 of the Employment Rights Act 1996 set outs what orders could be made in which circumstances, where an interim relief application had succeeded. Section 129(9) states that if the employer fails to attend the hearing, I should make an order for continuation of the employee’s contract of employment. As the respondent was not present at the interim relief hearing, that was the order which I made.[31]Section 130 of the Employment Rights Act 1996 sets out what is meant by an order for continuation of the contract of employment (and I will not reproduce it in these written reasons). Section 130(2) required me to make an order of the specific amount which is to be paid by the employer to the employee by way of pay in respect of each normal pay period. The claimant had produced his payslips which showed that basic pay which had been paid for each period had been £619.60. He had also calculated the productivity bonuses which he had been paid, which totalled £334.92 for the seven weeks he had worked when not absent on ill health grounds (I discounted the week Case No. 6017804/2025 6 when no payment had been made due to absence, from the calculation), which therefore meant that the average productivity bonus was £47.85. When added to the basic pay, that resulted in a weekly pay figure, which I awarded applying section 130(2), of £667.45. The claimant also sought an amount for overtime, as he had worked overtime in a number of the weeks worked. Whilst it may be that an amount for overtime lost might be recoverable as loss if the claimant succeeds in his claim at the final hearing, I decided that applying the approach I was required to take in an interim relief hearing of an expeditious summary, I would not also include in the pay which the respondent would be ordered to pay, an element for overtime which he might have worked. Employment Judge Phil Allen 6 October 2025[32]On the strength of those documents, I have to conclude that the respondent has, at least, an arguable case that it will succeed at final hearing. When I place that in the balance alongside my findings in relation to the respondent’s explanation for delay and the balance of prejudice, my conclusion is that it would be right to exercise my discretion and allow an Case No: 6017804/2025 7 extension of time, so that this respondent can put forward its defence and the Tribunal can ultimately decide the case on its merits.[33]Finally, I want to be clear that these findings, and particularly in relation to the merits of the defence, are my findings on the documents I have seen and against the test I have to apply. I do not see them as being inconsistent with the conclusions that Employment Judge Allen reached, applying the test that he has to apply and given the evidence which he had. Approved by: