Mr N O’Driscoll v Lantain Ltd and A G Sandry: 6017820/2026
EMPLOYMENT TRIBUNALS
Case No 6017820/2026
Between
Mr N O’DriscollClaimantLantain Ltd and A G SandryRespondent
Before
Employment Judge SudraMr. A.G. Sandry (Director (instructed by R1)) for respondentDate 1 June 2026
JUDGMENT
The Claimant’s application for interim relief is refused.
REASONS
[1]The purposes of the Hearing was to adjudicate upon the Claimant’s application for interim relief.
The Hearing
[2]The Hearing was listed for one-day and all parties attended.[3]By way of an ET1 claim form presented on 17th May 2026 the Claimant made an application for interim relief under s.128 Employment Rights Act 1996 (‘ERA’). The Claimant’s employment terminated on 10th May 2026, upon resignation, and therefore, the claim for interim relief has been brought within the time frame specified in s.128(4) ERA. The Notice of Hearing is dated 20th May 2026, so the parties have had seven days’ notice. Page 1 of 6[4]The Claimant has made complaints of constructive unfair dismissal, whistleblowing detriments, dismissal due to having made a protected disclosure in the public interest, notice pay, holiday pay, arrears of pay, and other payments.[5]I do not make any findings of fact; however, it is useful to summarise the Claimants’ claim under s.103A ERA and the parties’ submissions. Documents[6]I had before me: i. A bundle of 54 pages from the Claimant together with assorted additional documents; ii. a 14-page response document from the Respondents; and iii. various documents and emails from the Respondents. I heard oral submissions from the Claimant and Mr. Sandry during the Hearing.[7]The Claimant was employed by the Respondent on 1st October 2021 as a landscaper. The Respondent is small gardening and landscaping company. Upon his resignation, the Claimant’s employment terminated on 10th May 2026.[8]From 22nd February 2026 to 28th February 2026 the Claimant made protected disclosures to the Second Respondent.[9]In summary these included the following concerns: Breaches of the Health and Safety at Work Act 1974; and breach of the Working Time Regulations 1998 (‘WTR 1998’).[10]The fact of the protected disclosures and that they fall within the definition of qualifying disclosures within s.43B of the Employment Rights Act 1996 section 43 is not disputed for the purposes of this Hearing. The Claimant’s Submissions[11]The Claimant’s submissions were focussed on protected disclosures made about alleged health and safety breaches in respect of workplace injuries sustained whilst performing heavy lifting and non-compliance with the WTR 1998.[12]The Claimant stated that in response to his disclosures the Respondent subjected him to detriments in respect of pay, conditions, and non-availability of work.[13]The Claimant asserts that because of the Respondents’ alleged detriments he had no choice but to resign; which he did on 10th May 2026. The Respondent’s Submissions[14]Mr. Sandry supplemented his written submissions with oral submissions. I heard that the Claimant had failed to engage with the Respondents in respect of his various grievances and complaints and that some of the alleged treatment (i.e. Page 2 of 6 changing the Respondents’ policies in respect of commuting time and damage caused by misuse of machinery) was because of business efficacy and not because the Claimant had raised disclosures in grievances which had been submitted.
The Law
[15]By virtue of s.95(1)(c) ERA, employees have, subject to certain conditions, a right not to be unfairly dismissed. By s.103A ERA, where the reason, or if more than one, the principal reason, for dismissal is that the employee made a protected disclosure within the meaning of s.43A ERA, the dismissal is automatically unfair.[16]By s.230 ERA, an employee is someone who has entered into or works under (or where the employment has ceased, worked under) a contract of employment. A contract of employment is defined as a contract of service or apprenticeship.[17]Dismissal, for the purposes of a complaint of unfair dismissal, is defined at s.95 ERA: ‘95 Circumstances in which an employee is dismissed. (1)For the purposes of this Part an employee is dismissed by his employer if (and, subject to subsection (2) only if)— (a)the contract under which he is employed is terminated by the employer (whether with or without notice), (b)he is employed under a limited-term contract and that contract terminates by virtue of the limiting event without being renewed under the same contract, or (c)the employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer’s conduct.’[18]In Williams v. Michelle Brown AM UKEAT/0044/19/OO at [9], HHJ Auerbach summarised the five issues, which a Tribunal is required to decide in relation to whether something amounts to a qualifying disclosure: ‘It is worth restating, as the authorities have done many times, that this definition breaks down into a number of elements. First, there must be a disclosure of information. Secondly, the worker must believe that the disclosure is made in the public interest. Thirdly, if the worker does hold such a belief, it must be reasonably held. Fourthly, the worker must believe that the disclosure tends to show one or more of the matters listed in subparagraphs (a) to (f). Fifthly, if the worker does hold such a belief, it must be reasonably held.’ (My emphasis).[19]In order for a qualifying disclosure to be a protected disclosure it must be made in accordance with s.43C to 43H ERA.[20]The ‘reason’ or ‘reasons’ for dismissal is/are the factor(s) operating on the decision-maker’s mind which causes him/her to take the dismissal decision (Croydon Health Services NHS Trust v. Beatt [2017] ICR 1420). In some Page 3 of 6 circumstances, the net could be cast wider than the person who made the decision to dismiss, such as where the facts known to, or beliefs held by, the decision-maker have been manipulated by another person (Royal Mail Ltd v. Jhuti [2019] UKSC 5 and explained further in Kong v. Gulf International Bank (UK) Limited EA-2020-000357-JOJ). Interim Relief[21]SS.128 to 130 ERA make provision for interim relief. This is a remedy for (certain types of) unfair dismissal. It is worth setting out s.128 in full and part of s.129 ERA: ‘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…. 103A… 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…. 103A, or […] (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 Page 4 of 6 (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.’[22]Rule 95 provides that the hearing should be conducted as a Preliminary Hearing within Rules 53 to 56. The proper approach is as follows (Parsons v. Airplus UKEAT/0023/16/JOJ4 March 2016 at para [8]): ‘On hearing an application under section 128 the Employment Judge is required to make a summary assessment on the basis of the material then before her of whether the Claimant has a pretty good chance of succeeding on the relevant claim. The Judge is not required (and would be wrong to attempt) to make a summary determination of the claim itself. In giving reasons for her decision, it is sufficient for the Judge to indicate the “essential gist of her reasoning”: this is because the Judge is not making a final judgment and her decision will inevitably be based to an extent on impression and therefore not susceptible to detailed reasoning; and because, as far as possible, it is better not say anything which might pre-judge the final determination on the merits.’[23]Interim relief should be ordered only if it appears that it is likely that on determining the complaint the Tribunal will find that the reason or principal reason for the dismissal was a proscribed ground: s.129 ERA. There is judicial guidance on the meaning of ‘likely’ in this context: 1.1. A “pretty good chance of success”: Taplin v. C Shippam Ltd [1978] IRLR 450 [23]; Wollenberg v. Global Gaming Ventures (Leeds) Ltd (UKEAT/0053/18)); 1.2. “something nearer to certainty than mere probability”: Ministry of Justice v. Sarfraz [2011] IRLR 562 at [19]; and 1.3. a “good arguable case” is not enough: Parsons v. Airplus UKEAT/0 023/16/JOJ 4 March 2016.[24]The hurdle which the Claimant must clear is set relatively high. There is good reason for this. As the EAT noted in Dandpat v. University of Bath UKEAT/0408/09, 10 November 2009 unreported: ‘20. … We do in fact see good reasons of policy for setting the test comparatively high, in the way in which this Tribunal did, in the case of applications for interim relief. If relief is granted the respondent is irretrievably prejudiced because he is obliged to treat the contract as continuing, and pay the claimant, until the conclusion of proceedings: that is not [a] consequence that should be imposed lightly’.[25]The Tribunal cannot be criticised for concluding that matters are not sufficiently clear cut at the interim relief stage for it to have sufficient confidence in the eventual outcome to grant interim relief: Parsons at [18]. Discussions and Conclusions[26]For the purposes of this Hearing, the issue is whether under s.129 ERA it appears that it is likely that the reason for the dismissal was making a protected disclosure Page 5 of 6 as per s. 43B ERA. 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 ILR 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. Clearly this involves less detailed scrutiny than will be undertaken at the full final hearing. 27. ‘Likelihood’ has been interpreted to mean ‘a pretty good chance of success’ at the full hearing - Taplin. 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 or her case - or 51% or better. A pretty good chance is something nearer to certainty than mere probability.[28]A factor I have taken into account is that the Claimant has failed in his ET1 claim form and attached Particulars of Claim to set out what specific detriments were attributable to which alleged protected disclosures he has made. The Claimant has made statements about the Respondent not engaging in grievances or not providing work. The Respondents’’ contend that there was a refusal to engage in grievance processes and that as the First Respondent is a seasonal business, work is offered according to demand as is the practice in its particular industry.[29]The Claimant has not convinced me that his claim for being dismissed for making a protected disclosure is nearer to certain, rather than a possibility. He has not demonstrated at this very early stage in the proceedings, that it is likely his claim will succeed at a full hearing, nor that it has a pretty good chance of success.[30]I am mindful of the fact that the complexity of a claim is not sufficient reason to conclude it does not have pretty good chances of success, In Raja v. Secretary of State for Justice UKEAT/0364/09, the EAT criticised an Employment Judge's decision that interim relief orders should only be made in connection with simple factual disputes.[31]These are not matters that I can, based on the evidence currently available, assess in such a way as to enable me to conclude that the Claimant has a pretty good chance of success.[32]For these reasons the application is refused.