Employment Judge R S DrakeIn person for claimantDate 3 July 2025
JUDGMENT
It is likely that, on determining the complaint to which the application relates, the Tribunal will find that the reason or principal reason for the Claimant’s dismissal is that specified in s103A ERA 1996. Interim relief is therefore appropriate in this case. The Claimant’s pay shall be restored and continue to be paid by the Respondents at previous contract rate from 20 May 2025 until the case is heard or disposed of.
REASONS
[1]By a claim presented on 23 May 2025, the Claimant brought claims of automatic unfair dismissal as a result of making protected disclosures.[2]She applied for interim relief and the hearing was held before the Respondent had filed its Grounds of Resistance. I note from their consultancy advisor that they intend to do so by 11 July 2025 and to deny each allegation against them.[3]The tribunal had the benefit of written argument from Claimant (attached to her ET1) and detailed oral submissions from the Respondent, and reference to a number of authorities. The Claimant’s case[4]The Claimant was employed by the Respondent from 14 October 2024 until the termination of his employment on 20 May 2025.[5]The Claimant relies on a verbal disclosure on 9, and 12 May 2025 to Mr Neil Mitchell, Compliance manager for the Respondent and 16 May 2025 to Mr Alan Austin managing director of the Respondent, which she says was/were the reason for her dismissal on 20 May 2025. The Claimant refers to intervening and subsequent discussions with Joe Hearn 9 May advising her to find another job, and. Neil Mitchell 14 May saying he “did not believe (the Claimant) would be coming back”, This suggested to her strongly that the subsequent dismissal was caused by her disclosures and was already foreshadowed once she had made the first disclosure.[6]The disclosures were of instances actually observed by the claimant, witnessed by others and caught on CCTV, of the leaving of sensitive confidential documents in places where other staff and members of the public could access them and see private and confidential data belonging to other employees. Thus the claimant perceived that these acts were of themselves illegal in relation to the GDPR and data protection acts and that it was necessary to disclose them to the Respondent’s management.[7]From the Respondent’s failure to cite a credible reason for the Claimant; s dismissal on 20 May, the Claimant asserts that one may infer readily that her dismissal was a result of him raising data security concerns.[8]The decision to terminate the Claimant’s employment despite her being only recently told she was performing well, came within days of the last disclosure made. The Claimant says: - 9.i.1. No credible evidenced reason was given; 9.i.2. Dismissal was communicated at an unwarned meeting chaired by Mr Mitchell; 9.i.3. No performance issues were asserted; 9.i.4. Dismissal was not in accordance with ACAS Code of Practice; 9.i.5. No evidence was relied on as to due process or investigation; 9.i.6. There had been no probation review; 9.i.7. After the meeting another manager, Mr Norwood, revealed he had been asked before the meeting if he thought the Claimant had ever acted inappropriately; The Respondent’s case[9]The alleged facts relied on by the Respondents are not yet set out in an ET3 which leaves me with no alternative but to rely upon the very detailed statement of the Claimant’s case in the attachment to her ET1.[10]Put simply, the Respondents argue that they take issue with everything the Claimant says and that therefore she cannot at this stage satisfy the relatively high burden of showing that it is pretty likely her claim would succeed at final hearing.[11]In short they rely upon what they assert is conflicting evidence but that as yet the issues cannot be identified until they have served the ET 3. The law The relevant statutory provisions and legal authorities are as follows:
The law
[12]Section 128 Employment Rights Act 1996 (“ERA”) provides: 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 TULRCA may apply to the tribunal for interim relief.[13]The question to be considered upon an application for interim relief is set out in s129 ERA 1996: 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 that the reason (or if more than one the principal reason) for the dismissal is one of those specified in section 100(1)(a) and (b), 101A(1)(d), 102(1), 103 or 103A[14]Interim relief can therefore be ordered where the Tribunal finds that it is likely that a final hearing will decide that the reason (or principal reason) for dismissal was the employee having made protected disclosures contrary to Section 103A ERA1996.[15]The meaning of the word 'likely' for these purposes has been considered in several cases. In Taplin v C Shippam Ltd [1978] IRLR 450 EAT, (decided under similar provisions relating to interim relief applications in dismissal for trade union reasons) the EAT held that it must be shown that the Claimant has a 'pretty good chance' of succeeding, and that that meant something more than merely on the balance of probabilities.[16]A 'pretty good chance' of success was interpreted in the whistleblowing case of Ministry of Justice v Sarfraz [2011] IRLR 562, EAT, as meaning 'a significantly higher degree of likelihood than just more likely than not'. Underhill P stated in Sarfraz that, “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.”.[17]The Claimant must show the necessary level of chance in relation to each essential element of Section 103A ERA automatic unfair dismissal - see Simply Smile Manor House Ltd and ors v Ter-Berg [2020] ICR 570.[18]The Claimant must therefore show that it is likely that the Tribunal at the final hearing will find that: 1. she made the disclosure(s) to the employer; 2. she believed that it or they tended to show one or more of the matters listed in the ERA 1996 s 43B(1); 3. her belief in that was reasonable; 4. the disclosure(s) was or were made in the public interest; and 5. the disclosure(s) was or were the principal cause of the dismissal.[19]"Protected disclosure" is defined in Section 43A ERA: 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.[20]"Qualifying disclosures" are defined by Section 43B ERA: 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— … that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject… … that the health or safety of any individual has been, is being or is likely to be endangered…[21]The disclosure must be a disclosure of information, of facts rather than opinion or allegation (although it may disclose both information and opinions/allegations), Cavendish Munro Professional Risk Management v Geldud [2010] ICR; and Kilraine v LB Wandsworth [2016] IRLR 422.[22]The test for “reasonable belief” is a subjective test.[23]In determining whether the reason for the Claimant’s dismissal was her alleged disclosure, it is not sufficient for the disclosure to be “in the employer’s mind” or for it to have influenced the employer. The Tribunal must consider whether that disclosure was the “sole or principal reason” for his dismissal, Discussion and decision[24]I have to assess whether it appears likely that a final hearing would find that the Claimant succeeded in each of the elements of an automatically unfair dismissal claim for having made a protected disclosure. Has there been a protected disclosure?[25]On the evidence before me and bearing in mind I must judge it by reference to whether in the absence of explanation it reveals potential probative quality, I can find it likely that a Tribunal would find that two events were protected disclosures. T h e s e o c c u r r e d o n 9 a n d 1 2 M a y 2 0 2 525.19 May 2025 – the Claimant reported to Mr Neil Mitchell that confidential legal documentation concerning another senior staff member had that day been left unsecured and openly accessible on a Reception desk and that this amounts to breach of the GDPR and the Data Protection Acts (“DPA”);25.212 May 2025 – the Claimant again reported to Mr Mitchell that she had observed that day two members of staff handing confidential documents to a member of Reception staff again amounting to breach of GDPR and DPA;[26]Both disclosures gave rise to reports about both being made to the ICO. Was that the reason for dismissal?[27]The following events happened demonstrating causative linkage between the disclosures and the Claimant’s dismissal on 20 May 2025:28.1 Upon making the 9 May disclosure, Mr Mithell advised the Claimant was dismissive;28.2 On the same day another member of staff Sophie smith (Executive Assistant) described the Claimant’s actions as “Chinese whispering”;28.3 Upon making the 12 May disclosure, on the same day Joe Hearn Digital Manager advised the Claimant to “find another job”;28.4 On 14 May 2025, Mr Mitchell told the Claimant he “didn’t believe she would be coming back”;28.520 May 2025, without prior warning or disciplinary procedure, the Claimant was dismissed by Mr Mitchell with a member of legal staff present - no appeal rights were advised and no right to be accompanied made clear;[28]The Claimant alleges that preceding events point to the likelihood that having made complaints amounting to protected disclosures, her dismissal was expected by other staff and was already pre-ordained before it happened. She points to the high likelihood of connection between disclosures and dismissal.[29]If the claimant manages to show that the disclosures were protected disclosures, I can find it likely that she will be able to establish that these were the reasons for her dismissal, which was decided within days and was not accompanied by an alternative explanation as to cause.[30]In conclusion, the Claimant’s application for interim relief succeeds but she does not seek reinstatement but interim protection of salary security.[31]A case management hearing will be listed to make case management orders for the matter going forward, to discuss and finalise a List of Issues for the full merits hearing and to list the hearing.