Mr D Flynn v London General Transport Services Ltd: 6028657/2025
EMPLOYMENT TRIBUNALS
Case No 6028657/2025
Between
Mr D FlynnClaimantLondon General Transport Services LtdRespondent
Before
Employment Judge FrenchIn person for claimantMs Moss (instructed by counsel) for respondentDate 17 October 2025
JUDGMENT
[1]The claimant’s application for interim relief is refused.[2]Written reasons having been requested by the claimant at the hearing, the following reasons are provided.
REASONS
[1]This hearing was before me to determine the claimant’s application for interim relief under ss.128-129 Employment Rights Act 1996 (“ERA”). This is an application against the respondent on the grounds that the claimant alleges that he was automatically unfairly dismissed for ‘whistleblowing’ under s.103A ERA.[2]By way of evidence, I had a bundle prepared by the respondent consisting of 107 pages and a draft witness statement from Mr. Mark Cambridge. I also had a skeleton argument produced by Ms Moss on behalf of the respondent.[3]The claimant had produced a separate bundle consisting of 121 pages and an authorities bundle which ran to 158 pages. I also had a scott schedule prepared by the claimant which sets out each of his protected disclosures and which, in any event, are set out in his claim form. For the claimant I had a witness statement from the claimant himself, a statement from Thomas Maughan, Francisco Pierra and Ayyubkhan Pathan.[4]I also heard oral submissions from both parties during the course of the hearing and had regard to all evidence and those submissions in reaching my decision.
The law
[5]It is well established that interim award applications are usually conducted on the basis of documents only and without calling of oral evidence pursuant to rule 94 of the Employment Tribunal Procedure Rules 2024.[6]The parties and I agreed the legal test to be applied by me in deciding the application for interim relief. It is in section 129 of the ERA 1996, and has been amplified by case law. The applicable test was whether (applying Taplin v C Shippam [1978] IRLR 450, paragraphs 22-23; [1978] ICR 1068, 1074F) the claimant has a “pretty good” chance of succeeding in proving that the sole or principal reason for his dismissal was that he had made one or more protected disclosures.[7]In Ministry of Justice v Sarfraz [2011] IRLR 562, EAT, Underhill P, stated with reference to the test in Taplin that: “In this context “likely” does not mean simply “more likely than not” – that is at least 51 per cent – but connotes a significantly higher degree of likelihood. Slynn J understandably declined to express that higher degree in percentage terms, since numbers can convey a spurious impression of precision in what is inevitably an exercise depending on the Tribunal’s impression… …the Judge had understood the essential point which emerges from Taplin: “likely” connotes something nearer to certainty than mere probability…”[8]Where an employee claims that he or she was dismissed contrary to S.103A ERA, the question for consideration is whether the protected disclosure was the reason or principal reason for the dismissal. If it was, then the dismissal will be automatically unfair. 9. s.43B of the ERA provides: (1) In this Part a “qualifying disclosure” means any disclosure of information which, in the reasonable belief of the worker making the disclosure, 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, (c)that a miscarriage of justice has occurred, is occurring or is likely to occur, (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.[10]There are two separate requirements here –(a) a genuine belief that the disclosure tends to show a relevant failure in one of the five respects (or deliberate concealment of that wrongdoing); and(b) that belief must be a reasonable belief. Reasonableness involves applying an objective standard to the personal circumstances of the discloser.[11]If the disclosure has a sufficient degree of factual content and specificity, then that belief is likely to be regarded as a reasonable belief Kilraine v London Borough of Wandsworth [2018] ICR 1850. The belief has to be that the information in the disclosure tends to show the required wrongdoing, not just a belief that there is wrongdoing. The disclosure may still be a protected disclosure even if the information does not stand up to scrutiny. A belief may be a reasonable belief even if it is wrong: Babula v Waltham Forest College [2007] ICR 1026.[12]There must be a reasonable belief on the part of the worker that the disclosure was in the public interest. This requirement has two components – first a subjective belief, at the time, that that the disclosure was in the public interest; and secondly, that the belief was a reasonable one.[13]The EAT observed in Dobbie v Felton t/a Feltons Solicitors 2021 IRLR 679: ‘If the aim of making the disclosure is to damage the public interest, it is hard to see how it could be protected’.[14]In Parsons v. Airplus International Ltd EAT 0023/16 the parties disagreed as to what the principal reason for dismissal was and whether the disclosures made by the claimant amounted to protected disclosures. An EJ refused the claimant’s interim relief application, noting that while some of the disclosures made were likely to be found to be protected disclosures, resolution of the issue of whether these formed the principal reason for dismissal was less clear cut. Given that the employer was contending that it was the manner in which the disclosures were made, and not the fact of them being made, that had led to the claimant’s dismissal, the EJ observed that there was a potential issue as to whether motivations could be separated in this way and that a resolution would depend on fact finding and a careful analysis of the issues following consideration of the relevant case law. While that claimant had a ‘good arguable case’, the EJ was unable to say at the interim relief application stage that she had a ‘pretty good chance of success’. On appeal, the EAT agreed that it was not appropriate at the interim relief stage to resolve any conflicts in the authorities or to reach a final view on the law of causation in the context of protected disclosures.[15]In Shinwari v Vue Entertainment Ltd UKEAT/0394/14, Simler J held: “In my judgment there is nothing…that prohibits the drawing of a distinction between the making of protected disclosures and the conduct by the (employee) that follows, which although related to those disclosures is separable from them. Of course care must be taken to ensure that an argument to that effect advanced by an employer is properly scrutinised, so that the legislation is not abused. But there is nothing, in my judgment, in principle to suggest that such a distinction cannot be drawn”.
Conclusions
[16]The claimant seeks interim relief under s.103A ERA. In summary the claimant must show that there is a pretty good chance that the Tribunal will find that:1.1 he made his disclosure(s) to the employer;1.2 he believed that it or they tended to show one or more of the matters itemised in section 43B(1)(a)-(f) ERA;1.3 his belief in that was reasonable;1.4 he believed the disclosure(s) was or were made in the public interest;1.5 that belief was reasonable; and1.6 the disclosure(s) was or were the principal cause of the dismissal. 3. The claimant relies on 15 protected disclosures which, are outlined in his claim form. The respondent does not concede that the concerns raised were protected disclosures and reserves its position on all aspects. However, the main point of contention for today’s purposes was whether the claimant had any belief that his disclosures were in the public interest. 4. There is also a specific issue taken in relation to protected disclosures 4 and 9, and what is said to amount to religious intolerance within them. Protected disclosure 4 relates to the claimant having complained essentially that female drivers should not be permitted to wear the hijab and/or niqab. Protected disclosure 9 relates to a complaint by the claimant about a celebration of Eid being permitted by the respondent. In that regard, the respondent relies on Dobbie v Felton t/a Feltons Solicitors where if the making of the disclosure is to damage the public interest it is hard to see how that would be a protected disclosure. 5. At this stage, on the evidence before me, I am not satisfied that there is anything that would support that the claimant has a pretty good chance of proving that the 15 disclosures were made in the public interest against the respondents in disproving that fact. Ultimately, this will require a full assessment of the evidence in due course. 6. Ultimately however, even if the claimant can show that some or all of the information disclosed were protected disclosures the claimant needs to show that he has a “pretty good” chance of succeeding in proving that the sole or principal reason for his dismissal was that he had made one or more of the protected disclosures. 7. In that regard, the claimant places particular reliance on the fact that his final protected disclosure (PD 14 in the claim form but the final disclosure prior to his dismissal) was made on 29 July 2025 and that is the disclosure in the claimant’s bundle on page 43. He suggests that it is therefore no coincidence that, subsequently, he is dismissed on 31 July 2025. 8. I have some difficulty in relation to that disclosure. Firstly, I am not persuaded that the claimant has a pretty good chance of persuading the final hearing tribunal that this disclosure was made in the public interest and that is because even on the claimant’s position today that appears to be self-serving namely his concerns raised about the wipes and their ingredients is said to relate to his child who he says has a dermatological condition which would require him to have known the ingredients within those wipes. 9. Secondly even if the claimant is successful in this regard, it is the context and with the background of 14 other disclosures and I am not taken to any evidence which would support why that particular protected disclosure, which was made close to the time of dismissal on 31 July 2025, was the reason for dismissal. Therefore, the timing of that particular disclosure being two days before the dismissal at this stage, to me, is not persuasive. 10. Further, in terms of the evidence before me, I am assisted by the contemporaneous dismissal letter at page 106 to 107 of the respondent’s bundle. That sets out a number of reasons why the claimant is said to have been dismissed. There is reference to him being unmanageable and there being a breakdown of the relationship. 11. I accept that, within that context, there is reference to the number of complaints that the claimant has made, and, of course, those complaints are relied on by the claimant as protected disclosures. I can see, in those circumstances, that the claimant may have an arguable case in terms of the possible link between the decision and the protected disclosure. 12. However, I have been taken to the case law provided by the respondents on this particular point and as outlined above, which draws the distinction between the facts of the complaints being made and the manner in which the complaints were made or pursued. It is the respondent’s position that it was the manner that the complaints were pursued that contributed to, or led to, his dismissal. 13. As to the dismissal, the question will also be what was on the mind of the decision maker and not the tribunal’s own assessment of the same. 14. In support of what was on the mind of Mr Cambridge, my own reading of the claimant’s correspondence points to the conclusion that his manner was unacceptable. In particular, I look at the correspondence regarding the religious festivals, which is at page 99 of the respondent’s bundle, and the particular stance taken by the claimant in that regard. Over three pages he outlines numerous other religious festivals that have not been observed by the respondent, in response to the email sent by the respondent at page 104. My assessment on the evidence before me is that the claimant's reaction is disproportionate to the respondent extending its best wishes around Eid and providing some treats for individuals that want them (as outlined at page 104). 15. I also note the correspondence in the respondent’s bundle at pages 84 and 85. This concerns an occasion where the claimant was released from his shift to attend as a workplace colleague, and he queried the entry on a portal entry that stated he was on ‘unpaid leave’. The claimant was informed that he would be paid for his attendance, however, the claimant pursued the respondent about the existence of a policy in this regard outlined at page 83 to 84 and page 91. 16. Those are just two particular examples which support what may have been in the mind of Mr Cambridge when he made the decision to dismiss the claimant. Careful examination will be required in due course, but at this stage I consider that evidence would support the respondent’s position. That therefore goes against the claimant in persuading me that there is a pretty good chance of showing that the principal reason for his dismissal was one or more of his protected disclosures.[17]There is also a document presented by the claimant in his bundle at page 33. It has as a footnote ‘Interim relief claim only’ and I treat the same as a form of submissions by the claimant. At page 34 within that document, at paragraph 2.8 he refers to ‘the fact that the claimant had previously logged a grievance against Mark Cambridge for the forceful removal of the claimant from the “pre promotion course” in an aggressive manner.’ He goes on to state ‘it is therefore reasonable to assume that Mark Cambridge at the time of appointment into Northumberland Park had a personal agenda with Daniel Flynn that he was unaware of.’[18]This position was also adopted by the claimant in his oral submissions, namely that Mr Cambridge had some sort of personal issue against the claimant relating to this earlier grievance. That would appear to support the fact that there was some other reason why Mr Cambridge may have dismissed the claimant, not the protected disclosures.[19]The claimant also took me to the case of Royal Mail Limited v Jhuti [2019] UKSC 55, [2020] ICR 731 which held that where the real reason is hidden from the decision-maker behind an invented reason, the court must penetrate through the invention and decide upon the basis of the real reason for dismissal. In this case, however there is no suggestion that Mr Cambridge was not aware of at least some of the protected disclosures and that there has been an invented reason. Mr Cambridge in his statement refers to his own dealings with the claimant which led him to his conclusion to dismiss the claimant for his conduct and attitude.[20]I consider that this is different to the case of Jhuti. There, the tribunal concluded that the allegation of incompetence which led to the dismissal of the claimant, Ms Jhuti, was made by the manager about whom Ms Jhuti had made a protected disclosure because she had made that disclosure. That manager then caused the allegations about Ms Jhuti’s competence to be considered by another manager on the basis that Ms Jhuti should be dismissed. That other manager then decided, without having met Ms Jhuti because Ms Jhuti was too unwell to see the other manager in person and respond to the allegations about her competence, that Ms Jhuti should be dismissed because of the allegations of incompetence made by the original manager.[21]In addition, there appears to be a further potential reason for the dismissal unrelated to the protected disclosures and that relates to a post that was made on a platform called Blink which was viewable by all Northumberland Park Drivers which is said to have been an encouragement by the claimant to criticize management.[22]The claimant takes me to the fact that the respondent had not produced that post. I accept that that is not a contemporaneous piece of evidence before me today, but the claimant does not dispute that he made such a post. The issue in dispute is the precise wording of the same but even on the claimant's account he accepts that he used words to the effect of whether other people were being ignored by management. Again, that is another factor which I consider weighs in on the determination of whether the claimant has a pretty good chance of persuading the tribunal at a final hearing, that the principal reason was one or more of his protected disclosures. This incident supports that there may be some other reason as outlined by Mr Cambridge, namely that the relationship had broken down due to the claimant’s conduct, part of whcih was encouraging others to criticize management.[23]In summary therefore, in recognition that it is a high bar and pretty good chance is nearer to certainty than more than probable, on the evidence before me, I am not satisfied that the claimant has a pretty good chance of showing that the dismissal was due to one or more of his protected disclosures.[24]As I have outlined, there are firstly the issues raised in relation to the protected disclosures themselves. Although I have not carried out a detailed analysis of the same given that this is an interim relief hearing, even if I was persuaded that some are qualifying disclosures when I come to weigh up the arguments and evidence relied on by both parties I could not conclude that the claimant’s claim that he had been dismissed for whistleblowing had a pretty good chance of success: I was not satisfied that the claimant had shown that there was a “pretty good chance” that the principal reason for his dismissal was that he made one or more protected disclosures.[25]As a final observation, I do acknowledge the claimant’s position that the dismissal letter references the complaints that he has made and, of course, those complaints are what he relies on as his protected disclosures. I acknowledge that that may well be an arguable case, but I have to balance that against the reasons that I have already outlined, and consider that arguable case is different to a ‘pretty good chance’ that the disclosures were the sole or principal reason.[26]For those reasons, the application for interim relief is dismissed. Approved by: