Mr P Datta v Banco Bilbao Vizcaya Argentaria Sociedad Anónima and Mr G Passaretta: 6035262/2025 Mr P Datta v Banco Bilbao Vizcaya Argentaria Sociedad Anónima and Mr G Passaretta: 6035262/2025
JUDGMENT
[1]For reasons given at the hearing, the Claimant’s application for interim relief was not granted and was dismissed.REASONS
[2]By a claim brought on 24 September 2025, the Claimant applied for interim relief (“the Application”) pursuant to section 128(1)(a) of the Employment Rights Act 1996 (“the ERA”)[3]To apply for interim relief a Claimant must bring themselves within one of the relevant categories in section 128 (1) Employment Rights Act 1996 by claiming that the reason, or if more than one reason, the principal reason for the dismissal is one of those set out i.e. making a protected disclosure (section 103A ERA 1996).[4]To obtain interim relief under section 129 ERA 1996 the applicant must persuade the Tribunal that it is “likely” that they will succeed at final hearing in proving that the reason or principal reason for their dismissal was the protected disclosures.[5]In Taplin v C Shippam Ltd [1978] ICR 1068, EAT it was held that the Tribunal should ask themselves whether the applicant has established that they have a “pretty good” chance of succeeding in the final application to the Tribunal. Taplin makes clear that the standard of proof is higher than a reasonable prospect of success i.e. a higher standard of proof than at final hearing.[6]In Ministry of Justice v Sarfraz (UKEAT/0578/10/ZT) it was made clear that in a whistleblowing claim in order to make an order under sections 128 and 129 the Judge had to have decided that it was likely that the Tribunal at final hearing would find all of the elements i.e. that the Claimant had made a disclosure to his employer, that he believed that it tended to show one or more of the matters itemised in section 43B, that the belief was reasonable and genuinely held etc.[7]In Parsons v Airplus International Ltd (UKEAT/0023/16/JOJ) the EAT stated that on hearing an application under section 128 the Employment Judge is required to make a summary assessment on the basis of the material before them of whether the Claimant has a pretty good chance of succeeding on the relevant claim. The Judge is not required (and would be wrong to attempt) to make a summary determination of the claim itself.[8]The Tribunal reminded itself that in order to succeed in his application for interim relief the Claimant must show that he has a "pretty good" chance of succeeding in proving all the elements of his claim i.e. that he made a disclosure of information , that he had a reasonable belief that the disclosure was in the public interest .Further the Claimant must show that he has a "pretty good" chance of succeeding in proving that the reason or principal reason for the dismissal was that he had made protected disclosures.[9]The claimant has to establish that his case is nearer to certainty, rather than a mere possibility. That he has a higher degree of certainty than reasonable prospects of success; he has to demonstrate a pretty good chance of success or of succeeding. At a final hearing, the claimant only has to prove his case on the balance of probabilities or establish 51% prospect of succeeding. This application involves a much higher degree of certainty. The claimant's case it that his dismissal was due to the protected disclosures he made. 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 final response to the allegations which are the subject of the interim relief application. What has been conducted is a summary assessment based upon a limited amount of time and limited documents. Full disclosure has not taken place.[10]The Tribunal received documentation from both parties and their helpful skeleton arguments which were all carefully considered.[11]The Claimant alleges that the reason, or principal reason, for his dismissal on 17 September 2025, was the fact of him making oral protected disclosures in meetings on 10 and 17 July 2025. The Respondents’ position was that the Claimant’s trading was carrying significant losses and there were discussions whether the team structure adopted in 2024 should be reconsidered. Further, that it was the Claimant’s conduct that resulted in a breakdown in the professional relationship.[12]By early August 2025 it became clear to the Respondent that the Trading desk needed to be restructured in consequence of the reasons and the Claimant’s role would become redundant and his dismissal had nothing to do with any protected disclosures (which the Respondent maintained had not been made) but also it was clear to the Respondent that there was a breakdown in relationship at this stage between the parties due to the Claimant’s behaviour.[13]The decision to terminate the Claimant’s employment was explained by Mr Mather to the Claimant at a meeting on 7 August 2025. Following a letter sent on 22 August 2025 (which was not a protected disclosure letter) from the Claimant – the Respondent investigated the issues raised by the Claimant. The investigation found the matters raised were not substantiated and which was why the termination was delayed to allow this matter to be investigated.[14]The Tribunal was referred to witness statements of Mr Mather, the First Respondent’s Head of Talent & Culture Corporate & Investment Banking, and Ms Ferre, T&C Business Partner for Global Markets which explained that the protected disclosures had not been made to them and there were legitimate issues around performance.[15]There are several protected disclosures the Claimant states were made, namely that: a) The Second Respondent had an ‘old fashioned’ view of the respective roles of men and women, both in the workplace and at home. b) He had regularly mistreated a number of female employees of either the First Respondent or associated employers. c) He mistreated a female colleague, by shouting at her, belittling her and bullying her in front of others, reducing her to tears and subsequently arranging or deciding to dismiss her. d) He had moved specialised bonds, valued at €35 million, away from the books of the Claimant and another employee to the portfolio-hedging book managed by him. This was done in a way that bypassed the First Respondent’s normal risk management processes and potentially created a larger than normal risk of loss to customers.[16]Ms Ferre was clear in her witness statement that these disclosures were not raised. Mr Mather states that in discussions with him there was only a reference to a female colleague was made to him but only in the context of how the department was being run.[17]There are significant factual disputes on the evidence which not only relate to whether disclosures were made but also extend to whether there were genuine issues with performance and indeed whether a pay rise was given and related to the Claimant’s performance.[18]The Tribunal determined importantly there was disputed evidence in respect of facts and circumstances which would need to be tested at the final hearing as would the witnesses’ credibility. The Claimant had therefore not shown a “pretty good chance” of success that his claim will succeed at the final hearing. Therefore, the application for interim relief was dismissed. Further, for completeness the Tribunal was not persuaded by the Claimant’s argument that due to the fact that the second respondent did not attend that was a factor to that supported their position. The considered the evidence that was before it as it was obliged to do.[19]The Tribunal cannot say, at this stage that the prospects of any of these issues is nearer to certainty, rather than a mere possibility. The burden is on the claimant. The Tribunal's task as this hearing is necessarily a cursory exercise. No oral evidence was heard in accordance with Rule 94. The Tribunal was conducting an expeditious summary assessment doing the best it can with untested evidence. Interim relief is not something which should be granted lightly.[20]Following this summary assessment, 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.