Employment Judge WrightIn person for claimantMr A Ohringer - counsel for respondentDate 1 July 2025
JUDGMENT
The claimant’s application for interim relief failed and was dismissed. ___________Approved by
REASONS
[1]This was the claimant’s application for interim relief. Such applications are dealt with urgently and the notice of this hearing was dated 18/6/2025. In the interim, the claimant had made an application for an Order under Rule 49. That was granted on a temporary basis on the 19/6/2025. For the purposes of this hearing, it was proposed to continue that Order on a temporary basis until the next hearing. In the main, the reason for that was so the respondent could see the application and the supporting evidence and consider its position. The respondent will have quite necessarily been focusing on the interim relief application in respect of today’s hearing.[2]The law on interim relief is long-established and settled, was contained in respondent’s skeleton argument and is set out below: Interim relief20. The Tribunal has the power to grant interim relief under s.129 ERA 1996 where, after hearing the application ‘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’.21. Guidance on this provision (and the corresponding provisions relating to trade union activities) was provided by the EAT in London City Airport v Chacko [2013] IRLR 610: Whether the application for interim relief is made under the 1992 Act or the 1996 Act, the test to be applied by the Tribunal is the same in both cases. That is to say, that the Tribunal must be satisfied that “it is likely that on determining the complaint” the Tribunal will find that the reason or the principal reason for dismissal is that which the employee has asserted. It is not sufficient that the employee is able to establish that “it is likely” they were otherwise unfairly dismissed, i.e. for other reasons. They must be able to show that it is likely that it will be found that they have been dismissed for the sole or the principal reason of their trade union activities. (para.9) As long ago as the decision of this Employment Appeal Tribunal in Taplin v C Shippam Ltd [1978] ICR 1068 it was held that the appropriate test is higher than simply establishing that the balance is somewhat more in favour of the employee's prospect of success. It must, on the authority of Taplin, be established that the employee can demonstrate a pretty good chance of success. (para.10)22. The EAT in Al Qasimi v Robinson (UKEAT/0283/17) emphasised that the test of likelihood is ‘a relatively high bar for a claimant’ (paras.9-10). In Wollenberg v Global Gaming Ventures (Leeds) Ltd (UKEAT/0053/18) a differently constituted EAT observed: The question is whether the claim under section 103A is likely to succeed. This does not simply mean more likely than not. It connotes a significantly higher degree of likelihood. The Tribunal should ask itself whether the Applicant has established that he has a pretty good chance of succeeding in the final application to the Tribunal. (para.25)23. The Claimant is therefore only entitled to interim relief if she can persuade the Tribunal that she has significantly better than even chance of succeeding with all of the ingredients necessary to win a claim under s.103A ERA.[3]To summaries the various authorities, the burden is on the claimant. The Tribunal’s task as this hearing is necessarily a cursory exercise. No oral evidence will be heard in accordance with Rule 94. The Tribunal is conducting an expeditious summary assessment doing the best it can with untested evidence.[4]Interim relief is not something which should be granted lightly.[5]In light of those comments, the claimant has to establish that her case is nearer to certainty, rather than a mere possibility. That she has a higher degree of certainty than reasonable prospects of success; she has to demonstrate a pretty good chance of success or of succeeding. At a final hearing, the claimant only has to prove her case on the balance of probabilities, or establish 51% prospect of succeeding. This application involves a much higher degree of certainty.[6]The claimant’s case it that she made two protected disclosures. The first to the respondent’s insurer on the 18/12/2024 (not made to the respondent).[7]The second was a grievance raised on the 10/2/2025.[8]The respondent takes issue that both alleged disclosures are the claimant raising concerns about her own contract of employment and therefore do not satisfy the public interest test; as well as other criticism which it says mean they are not protected disclosures.[9]Even if the claimant has made a protected qualifying disclosures, the detriment which flows from it are referred to as ‘escalating detriments, which included retaliatory treatment after withdrawing medical consent, denial of previously agreed reasonable adjustments, exclusion from decisions and attempts to withhold contractual pay and compel unpaid leave’ (third paragraph box 8.2).[10]There will have been consequences once the claimant withdrew her medical consent, that does not however result in those consequences being detrimental.[11]That is the claimant’s assertion in her claim form, but the only evidence which was provided, which as explained can only be considered summarily, did not demonstrate a detriment (or a disadvantage as opposed to an unjustified sense of grievance). It can be seen there was disagreement, however, that does not necessarily equate to a detriment. For example, the claimant seems to take umbrage that she was informed that contractual sickness pay was coming to an end.[12]The Tribunal also takes into account one issue which the claimant said caused her resignation, was correspondence between the respondent and its insurer in November 2024, which she did not become aware of until 5/6/2024. On the claimant’s own case, that pre-dates her two disclosures and if there was any detriment, it cannot have been motivated by those disclosures as it pre-dated them.[13]The claimant’s employment was not terminated by the respondent. She resigned on the 10/6/2025. She claims constructive dismissal. She has the burden of establishing all the elements required for her dismissal claim to be successful. She will have to show the respondent breached the implied term of mutual trust and confidence and that the reason or principal reason what that she had made qualifying protected disclosures.[14]The Tribunal cannot say, at this stage that the prospects of any of these issues is nearer to certainty, rather than a mere possibility.[15]It should be made clear that the Tribunal is not making findings of fact on these issues. This is an assessment or overview at an early stage in the proceedings where the Tribunal does not even have the benefit of the respondent’s response. What has been conducted is a summary assessment based upon a limited amount of time and limited documents. Full disclosure has not taken place and both parties have been under time pressure to prepare and produce bundles for this hearing.[16]On that point, the claimant takes issue that the respondent uploaded its documents at 20:21 yesterday. Whereas the claimant had uploaded her documents on the 27/6/2025. The Tribunal does not accept that the respondent has gained any form of advantage. Normally, it would be critical of a respondent who provided documents very late in the day to an unrepresented party. The substance of the respondent’s documents however was a 12-page skeleton argument and a five-page witness statement. The other documents are from the period 5/9/2024 to 10/2/2025 and include email chains which included the claimant. In any event, the claimant has already referred to her DSAR and to having seen exchanges between the respondent and its insurer. Those document run to 34-pages. The respondent has to act through its staff and employees and as a legal entity, it cannot respond instantly.[17]In future, all parties will be expected to comply with the Tribunal’s Order for directions and are reminded that dates for compliance are not aspirational, they are deadlines.[18]Following this summary assessment and with a higher burden of proof, it does not necessarily follow that the claimant will be unsuccessful when relevant evidence will be produced, heard and tested at a final hearing which is the opposite of this expeditious summary assessment. The Tribunal does note however, that the respondent has already indicated that it intends to apply for a deposit Order and has reserved its position. That will be considered at the next case management hearing.[19]The claimant indicated her intention to appeal this Judgment and as a result this written reasons were produced. Approved by: