Employment Judge E BurnsRepresented himself for claimantWendy Miller (instructed by Counsel) for respondentDate 6 October 2025
JUDGMENT
The Claimant’s application for interim relief brought pursuant to Section 128 of the Employment Rights Act 1996 against the First Respondent was not well founded and is dismissed.
REASONS
[1]The Claimant presented a claim form to the tribunal on 9 September 2025 consisting of an application for interim relief under section 128 of the Employment Rights Act 1996.[2]It was not in dispute that the Claimant was an employee of the Respondent and that the application for interim relief had been presented in time.[3]In summary, the Claimant said he had made three protected disclosures and that these were the principle reason for his dismissal. The Respondent denied that the Claimant had made any qualifying protected disclosures under section 43B of the Employment Rights Act 1996. It said that the principle reason for the Claimant’s dismissal was gross misconduct.[4]I did not hear any evidence at the hearing. I made my decision based on the written documentation available at the hearing and the oral submissions made.[5]Both parties had prepared helpful written skeleton arguments and produced bundles for the hearing. In these written reasons, I refer to key documents from those bundles by page numbers in round brackets, distinguishing between them with a C or R.[6]Having read the relevant documents and heard submissions, I found against the Claimant. I delivered an oral judgment with reasons. The Claimant subsequently applied for written reasons. THE LAW Interim Relief
THE LAW
[7]Section 128 of the Employment Rights Act 1996 enables an employee to apply for interim relief where the employee presents a complaint that he has been unfairly dismissed and the reason (or if more than one, the principal reason) is that he made a protected disclosure pursuant to section 103A of the Employment Rights Act 1996.[8]Section 103A says: “An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee made a protected disclosure.”[9]The statutory provisions dealing with what constitutes a protected disclosure and to whom they have to be made to qualify for protection are found in sections 43A – 43L of the Employment Rights Act 1996. I have set out the relevant legal tests below.[10]An application for interim relief must be submitted within 7 days of the date of termination of employment (section 128(2) Employment Rights Act 1996).[11]When dealing with an application for interim relief, the key question is found at section 129(1)(a) of the Employment Rights Act 1996. I must consider whether it appears that is it likely that the tribunal will, on final determination of this claim, find that the principal reason the Claimant was dismissed was because she made a protected disclosure.[12]“Likely” is this context means that there is a “pretty good chance of success” at the final hearing (Taplin v C Shippam Ltd [1978] ICR 1086, EAT). A pretty good chance is more than simply on the balance of probabilities and requires a significantly higher likelihood (Ministry of Justice v Sarfraz [2011] IRLR 562, EAT).[13]This test applies to all elements of the claim, including for example, whether the claimant is an employee and of whom (Simply Smile Manor House Ltd and ors v Ter-Berg [2020] ICR 570, EAT). Protected disclosures[14]According to section 43A of the Employment Rights Act 1996 (ERA), 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 ERA.[15]Section 43B(1) ERA says 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—(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. Disclosure of Information – the Sufficiency Test[16]There must be a disclosure of information. In Cavendish Munro Professional Risks Management Ltd v Geduld [2010] IRLR 38, the EAT held that to be protected a disclosure must involve the disclosure of information that shows a matter set out in section 43B(1) of the Employment Rights Act 1996, and not simply voice a concern or raise an allegation.[17]The Court of Appeal subsequently cautioned tribunals against treating the categories of "information" and "allegation" as mutually exclusive, however, in the case of Kilraine v London Borough of Wandsworth [2018] EWCA Civ 1436. At paragraphs 30 -31, Sales LJ said: “I agree with the fundamental point …….. that the concept of “information” as used in section 43B(1) is capable of covering statements which might also be characterised as allegations. …….Section 43B(1) should not be glossed to introduce into it a rigid dichotomy between “information” on the one hand and “allegations” on the other. …… On the other hand, although sometimes a statement which can be characterised as an allegation will also constitute “information” and amount to a qualifying disclosure within section 43B(1), not every statement involving an allegation will do so. Whether a particular allegation amounts to a qualifying disclosure under section 43B(1) will depend on whether it falls within the language used in that provision.”[18]He went on to say at paragraph 35: “In order for a statement or disclosure to be a qualifying disclosure according to this language, it has to have a sufficient factual content and specificity such as is capable of tending to show one of the matters listed in subsection [43B](1).”[19]Whether a disclosure meets the sufficiency test should be considered in all the circumstances and take into account the context. It is important that we take into account what was said as a whole, rather than take a fragmented view of individual communications (Norbrook Laboratories (GB) Ltd v Shaw 2014 ICR 540, EAT). Whether two communications are to be read together is a question of fact for the tribunal (Simpson v Cantor Fitzgerald Europe [2021] ICR 695).[20]A disclosure may contain new information, in the sense that it involves telling a person something of which they were previously unaware, or it can involve drawing a person's attention to a matter of which they are already aware (section 43L(3), ERA 1996). Genuine and Reasonable Beliefs[21]The requirement for reasonable belief requires the tribunal to identify first what the claimant genuinely believed and then to consider whether it was objectively reasonable for the Claimant to hold that belief. We must consider this question in light of the particular circumstances including the Claimant’s level of knowledge (Korashi v Abertawe Bro Morgannwg University Local Health Board [2012] IRLR 4, EAT).[22]The test to be applied is whether a claimant reasonably believed(a) whether the information he disclosed showed a relevant failure had occurred, was occurring or was likely to occur and(b) whether his or her disclosure was made in the public interest.[23]A claimant does not need to demonstrate that the relevant failure actually occurred, was occurring or was likely to occur or that the disclosure was in the public interest. The focus is on the claimant’s beliefs. That said, the factual reality is not entirely irrelevant. It can be taken into account when considering the objective reasonableness of a claimant’s belief (Darnton v University of Surrey 2003 [ICR] 615, EAT; Babula v Waltham Forest College [2007] ICR 1026, CA).[24]The assessment should be made of the claimant’s beliefs at the time of making the disclosure and not with the benefit of hindsight (Jesudason v Alder Hey Children’s NHS trust [2020] ICR 1226). Public Interest Test[25]The leading case dealing with when the public interest test is met is Chesterton Global Ltd & Anor v Nurmohamed & Anor [2017] EWCA Civ 979. The Court of Appeal confirmed that where a disclosure relates to a breach of a Claimant’s own contract of employment, or some other matter under where the interest in question is personal in character, there may nevertheless be features of the case that make it reasonable to regard the disclosure as being in the public interest as well as in the personal interest of the worker. Each case will depend on its own facts and context.[26]Factors that may be helpful to consider include:(a) The numbers of people whose interests may be impacted by the disclosure;(b) The nature and extent of the interests involved and the impact(c) The nature of the wrongdoing disclosed(d) The identity of the alleged wrongdoer Dismissal for making a protected disclosure[27]The test in a dismissal case is whether the protected disclosure was the principal reason for the employer’s decision to dismiss the claimant. The burden of proof is on the claimant. This requires the tribunal to consider what is in the mind of the person who made the decision to dismiss.[28]Because what is in the mind of the decision maker is key, it is usually necessary for a successful claimant to establish that the decision maker had knowledge of a claimant’s protected disclosure.[29]There is an exception to this that arises in very limited circumstances. The exception arises where there is evidence that a dismissing manager, without knowledge of any protected disclosure, has been manipulated and misled into dismissing the employee for a different reason by someone more senior than they are in the hierarchy of the employer. If the reason for the manipulation is the claimant’s protected disclosure, this can be held to be the reason for dismissal (Royal Mail Group v Jhuti [2019] UKSC 55).
FACTUAL BACKGROUND
[30]An interim relief hearing requires a summary assessment of the material before the tribunal. The evidence is therefore untested in the usual ways. In light of this, it is important to note that that none of the following should be treated as findings of fact that bind any other tribunal.[31]The Respondent is a company that specialises in providing property services including maintenance, refurbishment and fabrication works to the owners of commercial and domestic properties.[32]The Respondent uses sub-contractors to undertake a wide variety of work primarily on client’s sites. It has policies that apply to the use of subcontractors that require them to be vetted before use. The vetting process includes ensuring the sub-contactors meet relevant health and safety standards and have appropriate levels of insurance.[33]The Claimant was employed by the Respondent from 27 August 2018 to 3 September 2025. During his employment he was a Health & Safety Manager, and his final position was Associate Director.[34]At the time the Claimant joined the Respondent it was owned by Ross Allen who was its MD. Between then and the date of the Claimant’s dismissal, the Respondent was acquired by a different company, Sasse Limited, and the MD changed to Benny Wunderlich.[35]The Claimant was initially suspended on 9 July 2025. He was subsequently dismissed without notice or payment in lieu of notice on 3 September 2025, following an investigation and two disciplinary hearings.[36]The disciplinary hearings took place on 15 August and 3 September 2025. Notes of the disciplinary hearings taken by the Respondent were included in both bundles (R74 – 85 / C 13 – 19 and 22-26). The Claimant had included an additional document in his bundle dated 26 September 2025 which contained his own notes of what he said at his investigation meeting and hearings (C 20)[37]The Respondent says that the reasons for the Claimant’s dismissal was gross misconduct were:• He used two contractors, ARRM Contractors Ltd (“ARRM”) and J.K. City Maintenance Limited (”J.K. City”) to carry out work when they had not been vetted. The Respondent relied on the fact that the contractors were not in the list of vetted subcontractors as at 9 July 2025; and• J.K. City Maintenance Limited was a company that he owned, the existence of which he had not declared to the new MD. As such the Claimant was said to be in breach of his contract obligation not to set up in a business which competes with any aspect of the Respondent’s business (R28). This was confirmed in writing to him on 4 September 2025 (R86)[38]The Claimant had prepared a written statement, before the disciplinary hearing, dated 18 July 2025, which was not included in the bundle. He confirmed to me that in the statement he acknowledged that he not expressly disclosed the existence of J.K. City to Mr Wunderlich. He added that the existence of his company had been known by Mr Allen who had approved it. He also told me that he had been completely transparent about the existence of the company. During the Respondent’s disciplinary process he explained that work was only ever undertaken by J.K. City when the Respondent did not have capacity to do it directly.[39]The Claimant’s application for interim relief was based on the fact that he asserts that the real reason for his dismissal was because he made protected disclosures relating to health and safety. In his skeleton argument he provided detail of three disclosures as follows:•PD1: An email dated 13 January 2025 which he included in his bundle at page 8. The email is not written by the Claimant. It demonstrates that the Claimant asked the Respondent’s administration team to commence the vetting of ARRM.•PD2: An assertion that the Claimant ensured that interim safety measures were put in place in early 2025, so that pending completion of ARRM’s vetting, health and safety was not compromised. He provided evidence that ARRM’s insurance cover was in place on 2 July 2025 which I was told was before it carried out any work.•PD3: The Claimant says that at the disciplinary hearings he explained the above.
ANALYSIS
[40]In order for me to be in a position to grant the Claimant’s application for interim relief I needed to be satisfied that there was a pretty good chance that the tribunal making the final determination of this claim would conclude both that:• at least one of the purported disclosures that the Claimant says he made was a qualifying protected disclosure under the Employment Rights Act 1996; and• the principal reason for his dismissal was the relevant disclosure(s) and not a different reason. Did the Claimant make any qualifying protected disclosures?[41]I first considered the disclosures the Claimant was relying on.[42]I decided that it was unlikely that the tribunal at the final hearing would find that the Claimant had made any protected disclosures.[43]I explained that the Claimant needed to show that he had made disclosures of information tending to show that he reasonably believed that someone was in breach of health and safety law. The disclosures that the Claimant was relying on did not have this quality. I considered that instead they were disclosures of information that he made to show that he had not been responsible for any breach of health and safety law through the actions he had taken. They consisted of information put forward in his defence to the allegations made against him. What was the reason for dismissal?[44]I next considered what the tribunal at the final hearing would find was the Respondent’s genuine reason for dismissing the Claimant. I decided, based on the information available to me, that it was likely to find that this was the Claimant’s conduct rather than any protected disclosures.[45]My reason for reaching his conclusion was because, on the Claimant’s own case, as at 9 July 2025, neither ARRM nor JK City had been through the Respondent’s vetting process. In addition, he had acknowledged that he not expressly told the new MD about JK City and its relationship with the Respondent. The basis for the Respondent’s misconduct decision therefore stood up to scrutiny.
CONCLUSION
[46]Taking both of the above into account, my conclusion was that the test for awarding interim relief was not met. In other words, I was not satisfied that the Claimant had a pretty good chance of succeeding in his claim of automatic unfair dismissal.[47]I emphasised to the Claimant that I was only making a provisional assessment of his claim for the narrow purpose of deciding the interim relief application. I explained that in reaching this conclusion I had not considered whether the Respondent’s decision to dismiss him was fair in all the circumstances taking into account what he had told me in defence to the allegations. I also did not considered whether the procedure the Respondent had followed was a fair and reasonable one or was prejudged as he alleged. This was because these questions only arise when considering a claim of ordinary unfair dismissal.