Employment Judge Ayre, sitting aloneIn person for claimantMugni Islam-Choudhury (instructed by counsel) for respondentDate 2 September 2025
JUDGMENT
The claimant’s application for interim relief is refused.
REASONS
[1]On 26 July 2025 the claimant presented his first claim to the Employment Tribunal following a period of early conciliation that started on 15 July 2025 and ended on 21 July 2025. The first claim was given case number 6027754/2025 and includes, amongst other claims, a complaint of constructive unfair dismissal. At the time the first claim was presented, the claimant was still employed by the respondent.[2]On 12 August 2025 the claimant presented this claim, his second claim to the Employment Tribunal, claim number 6029784/2025. In the second claim the claimant alleges that he was automatically unfairly dismissed for whistleblowing. The claim form includes an application for interim relief.[3]On 19 August 2025 a Notice of Hearing was sent to the parties listing the case for today’s interim relief hearing and Legal Officer Singh ordered that the claims should be heard together. They are listed for a Preliminary Hearing for case management on 26 November 2025.[4]The respondent resists the application for interim relief. It asserts that the claimant was dismissed due to an irretrievable breakdown in the working relationship between the parties.
The hearing
[5]In advance of, and during the course of today’s hearing each party sent a number of documents to the Tribunal. I have considered those documents when reaching my decision.[6]The claimant submitted: 1. a 2 page witness statement; 2. an interim relief bundle running to 72 pages; 3. a skeleton argument; 4. consolidated submissions; 5. a letter from the consultant treating his ulcerative colitis; 6. a list of authorities; 7. a reply to the respondent’s skeleton argument; 8. a 13 page bundle of supplementary documents; and 9. a written response to Wendy Stroud’s witness statement.[7]The respondent submitted: 1. a bundle of documents running to 250 pages; 2. a 16 page witness statement for Wendy Stroud, the respondent’s Director of People; 3. the ET3 and Grounds of Resistance in the first claim; and 4. a Skeleton Argument.[8]The claimant made clear, in written submissions sent to the Tribunal in advance of the hearing that he was not seeking a postponement of today’s hearing.[9]On the afternoon of 1 September the claimant wrote to the Tribunal applying for Orders: 1. Excluding the respondent’s witness statement for Wendy Stroud or, in the alternative, giving it minimal weight; 2. That the application for interim relief be dealt with on the papers only, or with very brief submissions, without oral evidence or cross examination; 3. That the hearing be confined to “material already properly before the Tribunal” (the claimant confirmed during today’s hearing that he was seeking solely to exclude the witness statement of Wendy Stroud); and 4. That in the alternative, the claimant be given permission to file a written reply.[10]The claimant pursued these applications during today’s hearing. The respondent objected to the application to exclude Ms Stroud’s witness statement. I invited both parties to make submissions on the applications.[11]Having considered the submissions from both parties I refused the claimant’s application to exclude the witness statement of Wendy Stroud for the following reasons: 1. Interim relief has significant financial consequences for an employer as it involves the continuation of an employment contract for what could be many months, and the payment of significant sums of money to the claimant. The respondent should have the opportunity to adduce evidence before such an order is made; 2. The evidence of Wendy Stroud is highly relevant to the issue I have to decide today, namely whether it is likely that the claimant will be able to establish at the final hearing that the reason or principal reason for his dismissal was the protected disclosures. Wendy Stroud took the decision to dismiss the claimant. It would be unfair to the respondent to exclude her evidence; 3. In an interim relief application evidence is inevitably served at short notice, as the hearing takes place at short notice. Both sides in this case have served evidence at short notice. The claimant served his witness statement late on Friday 29 August. The respondent served its witness statement on the next working day, after the witness returned from holiday; and 4. The overriding objective and the interests of justice require me to consider the interests of both parties. I take account of the fact that the claimant is a litigant in person, but it is clear from the documents he has submitted to the Tribunal, in which he quotes extensively from the relevant statutory provisions, that he has some, if not a good, understanding of the relevant law and Tribunal rules of procedure.[12]For the above reasons the witness statement of Ms Stroud was admitted into evidence. Neither Ms Stroud nor the claimant gave oral evidence. The claimant was given time to produce a written response to Ms Stroud’s witness statement, and did so. I have read and considered that response. Both parties made oral submissions to supplement their written skeleton arguments. Reasonable adjustments[13]At the start of the hearing we discussed what adjustments the claimant needed to enable him to participate in today’s hearing, in light of his medical conditions. The claimant told the Tribunal that he did not need any adjustments other than regular breaks. Additional matters raised at the end of the hearing[14]At the conclusion of today’s hearing the claimant asked the Tribunal to make Orders that: 1. The respondent provide unredacted versions of documents; and 2. The respondent obtain and provide witness statements from all individuals involved in the decision to dismiss the claimant.[15]The above applications were refused. The application for disclosure is premature. The respondent has not yet filed its response in this claim. A Preliminary Hearing is listed for November at which matters of disclosure can be discussed. In relation to witness statements, I explained to the claimant that it is for each party to decide which witnesses it wishes to call.[16]The respondent raised the fact that the witness statement prepared by the claimant contains matters which, in the respondent’s view, require an application to amend. It was not appropriate for me to deal with any such application today. It can, if necessary, be considered at the Preliminary Hearing in November.
The Law
[17]Section 128 of the Employment Rights Act 1996 (“the ERA”) contains the right for employees to apply for interim relief: “(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(d), 102(1), 103 or 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 or an application for interim relief except where it is satisfied that special circumstances exist which justify it in doing so. “[18]Section 129 of the ERA sets out the procedure to be followed where an application is made for interim relief, and includes the following: “(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 100(1)(a) and (b), 101A(d), 102(1), 103 or 103A…. (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…..”[19]Rule 94 of The Employment Tribunal Procedure Rules 2024 provides that when a Tribunal hears an application for interim relief “rules 52 to 54 (preliminary hearings) apply to the hearing and the Tribunal must not hear oral evidence unless it directs otherwise.”[20]The test for the Tribunal in an application for interim relief is whether it appears likely that, when deciding the unfair dismissal claim, the Tribunal will find that the reason or, if more than one, the principal reason for dismissal, was the prohibited reason, in this case the alleged protected disclosure. 21. ‘Likely’ has been held to mean ‘a pretty good chance’ (Taplin v C Shippam Limited [1978] ICR 1068 and approved in Raja v The Secretary of State for Justice UKEAT/0634/09 and Dandpat v University of Bath and another UKEAT/0408/09) or ‘having a case that looks like a winner’ (Derby Daily Telegraph Limited v Foss EAT/631/91).[22]The Tribunal must apply the same test to all the elements of the automatic unfair dismissal claim that are disputed by the respondent (Hancock v Ter-Berg and another UKEAT/0318/19).[23]In Ministry of Justice v Sarfraz [2011] IRLR 562, Mr Justice Underhill noted that interim relief could only be awarded if it was likely that, at the final hearing, a Tribunal would find five things, namely that: 1. The claimant made a disclosure to his employer; 2. The claimant believed that the disclosure tended to show one or more of the matters within section 43B(1) of the Employment Rights Act 1996; 3. The claimant’s belief was reasonable; 4. The disclosure was made in good faith; and 5. The disclosure was the principal reason for the claimant’s dismissal.[24]The burden of proof is on the employee in an interim relief application, and the Tribunal should not grant interim relief if it considers that it is probable that the reason or principal reason for the dismissal is not the protected disclosure (Bombardier Aerospace (t/a Short Brothers Plc) v McConnell [2017] NICA 2017 and McConnell v Bombardier Aerospace (No 2) [2009] IRLR 201).[25]In London City Airport Ltd v Chacko [2013] IRLR 610 the Employment Appeal Tribunal found that the Tribunal is required, during an interim relief hearing, to make as good an assessment as it can of whether the claimant is likely to succeed, but that this will involve a far less detailed examination of the parties’ cases than will take place at the final hearing of the claim.[26]Where there is a significant conflict of evidence in relation to key issues, it is open to the Tribunal to conclude that the conflict cannot be resolved at an interim relief hearing, and to refuse the application for interim relief for that reason.
Conclusions
[27]In determining the claimant’s application for interim relief the question I have had to consider is whether the claimant is likely to succeed in establishing, at the final hearing of this claim, that he made protected disclosures and that the reason or principal reason for his dismissal was the disclosures. The application does not require me to make any findings of fact at this stage, and I do not do so. I am required to determine the claimant’s application for interim relief by making a broad assessment on the material before me today.[28]The starting point is the claim form itself, which is relatively brief. It does not set out in any detail the protected disclosures that the claimant now seeks to rely upon, but refers instead in general terms to “multiple” protected disclosures between November 2024 and August 2025 about breaches of various matters, including “legal obligations to implement Occupational Health recommendations….Health & safety risks…Breach of statutory rights on holiday pay …Data protection concerns” and “Notification that I was suffering reprisals for raising the concerns.”[29]The claimant does not set out at all in the claim form why he says the alleged disclosures were in the public interest. That is an important element of the legal test that will need to be applied and it is not addressed at all in the claim form. He does not identify whose interest he says he made the disclosures in (ie who the ‘public’ are).[30]The claimant asserts in the claim form that the principal reason for his dismissal was the disclosures because of the “temporal proximity between disclosures and adverse decisions up to dismissal”, the decision maker’s knowledge of his disclosures, departure from procedure, inconsistent / shifting explanations by the respondent, hostility to the disclosures and a failure / refusal to act on occupational health guidance.[31]In a witness statement prepared for this hearing, the claimant identified 8 alleged protected disclosures. Those disclosures were made during a different time period to that identified in the claim form, namely between March 2024 and July 2025. The dates that the claimant asserts in his witness statement that he made protected disclosures are 22 March 2024, 2 May 2024, 15 October 2024, 24 March 2025, 22 July 2025, 24 July 2025 and two on 30 July 2025.[32]I was taken during today’s hearing to the alleged disclosures, with the exception of one of them for which there was no documentary evidence. The respondent submitted that the alleged protected disclosures lack specificity, do not convey sufficient information to amount to a disclosure, that the claimant could not have had a reasonable belief that they disclosed a breach of a legal obligation, that the claimant did not have a genuine belief that the disclosures were made in the public interest, and that the claimant did not have reasonable grounds for believing that they were in the public interest. Those arguments, in my view, have some merit and it cannot be said that they are unlikely to succeed at the final hearing.[33]The claimant makes no reference to the public interest in the claim form. In his witness statement for today’s hearing he refers in the briefest of terms to the public interest but does not set out why he believes his disclosures were in the public interest or who the ‘public’ were. During submissions today, in response to a question from the Judge, the claimant said that the public he was referring to was other colleagues and customers.[34]I am not satisfied, on the evidence and submissions before me, that the claimant is likely to be able to establish that he made protected disclosures. In particular, I am not satisfied that the claimant is likely to be able to establish that the disclosures he made were in the public interest, or that his belief that they were made in the public interest was reasonable. Rather, it appears more likely to me that the disclosures were made in the claimant’s own personal interest.[35]It may of course be the case that the Judge at the final hearing concludes otherwise. That Judge will be applying a different burden of proof. The test that I have to apply is whether the Tribunal hearing the claim is likely to conclude that the claimant made protected disclosures. The claimant has not persuaded me that it is.[36]In addition, the evidence before me today does not suggest that the claimant was dismissed for raising concerns. Rather, it suggests that: 1. The concerns raised by the claimant were taken seriously and responded to; 2. The concerns which were contained within grievances were investigated under the respondent’s grievance procedure; 3. The respondent wanted the claimant to return to work and was taking steps to encourage him to do so; 4. The claimant refused to engage in discussions about a return to work unless certain demands that he made (including the removal from the workplace of a colleague with whom he had a dispute) were met; 5. By 25 July the claimant was refusing point blank to engage in any further internal processes; 6. Prior to the respondent taking the decision to dismiss the claimant, the claimant had indicated that he considered himself to have been constructively dismissed; and 7. The respondent would not have moved to dismissal if the claimant had been willing to attend a meeting to discuss a return to work.[37]The respondent says that the claimant was dismissed due to an irretrievable breakdown in the working relationship between the claimant and the respondent, and there was considerable evidence in the bundle of documents before me today to support that assertion. The claimant accepted in his submissions to the Tribunal that he had refused to attend a meeting with the respondent unless his conditions, including the removal of a colleague from his workplace, were met.[38]The claimant’s assertion that the true reason for his dismissal is a protected disclosure is an assertion that, at this stage, does not appear to be supported by the evidence I have considered today. The claimant has not in my view come close to discharging the burden of proving that he is likely to be able to show that the real reason for his dismissal is not that asserted by the respondent but is instead that he made protected disclosures.[39]The claimant relies heavily on the timing of his dismissal, which he says came quickly following the protected disclosures. That argument is undermined however by the fact that the first of the alleged protected disclosures was made in March 2024, approximately 17 months before the claimant’s dismissal, the second was made in May 2024, approximately 15 months before dismissal, the third in October 2024, approximately 10 months before dismissal, and the fourth in March 2025, approximately 5 months before dismissal.[40]The claimant also relies on the fact that the person who took the decision to dismiss him was aware of the disclosures he had made. That may very well be the case, but knowledge alone is not sufficient to establish that it is likely that the reason or principal reason for the decision was the protected disclosures. There were before me today a number of detailed letters setting out the background to and reasons for the dismissal, which appear to relate to the breakdown in the working relationship. I do not find that there has been any inconsistency or shifting of explanation by the respondent.[41]The claimant’s arguments that the respondent failed to follow a proper procedure or to implement occupational health recommendations appear, in my view, to have little merit. The claimant was unable today to articulate which specific occupational health recommendations the respondent had refused to implement, referring instead to a general suggestion that the claimant be provided with a ‘stress free’ workplace, which in the claimant’s view meant the removal of a particular colleague.[42]For the above reasons I find that the claimant has not discharged the burden of proof and has not established that the Tribunal is likely to find, at the final hearing, that the reason or principal reason for his dismissal was that he made protected disclosures.[43]The application for interim relief therefore fails and is dismissed.