Employment Judge LiveseyIn person for claimantMr England (instructed by counsel) for respondentDate 22 October 2025
JUDGMENT
[1]The Claimant’s application for interim relief under ss. 128 and 129 of the Employment Rights Act 1996 is dismissed.[2]The response having been provided to the Tribunal but not processed, the parties will receive notice of a Case Management Preliminary Hearing in due course.
REASONS
[1]By a claim dated 7 October 2025, the Claimant brought complaints of discrimination on the grounds of disability and dismissal and detriment on the grounds of public interest disclosure in relation to her employment as a Community Health and Wellbeing Worker for the Respondent charity between 10 March and 30 September 2025. The claim included an application for interim relief, although the Claimant indicated, both in her Claim Form and during the hearing, that she did not wish to return to her employment as she had lost trust in them. Legal framework[2]The Claimant’s application for interim relief was founded upon s. 128 (1)(a) of the Employment Rights Act 1996. She bore the burden of proof in respect of the application.[3]Section 129 (1)(a)(i) was relevant; “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…. 103A.” 4. ‘Likely’, according to the court in Taplin-v-C Shippham Ltd [1978] ICR 1068, meant ‘a pretty good chance’ (that test having been more recently confirmed in Dandpat-v-University of Bath UKEAT/0408/09 and London City Airport-vChacko [2013] IRLR 610). The test required a “significantly higher degree of likelihood” than the balance of probabilities (Underhill J in Ministry of Justicev-Sarfraz [2011] IRLR 562 and Wollenberg-v-Global Gaming and another UKEAT/0053/18/DA).[5]The Tribunal was required to carry out an ‘expeditious summary assessment’ of the case (London City Airport Ltd-v-Chacko [2013] IRLR 610, EAT) and, as in this case, that was often only based upon an analysis of the Claim Form and the hearing of further oral submissions. The rules expressly excluded the hearing of evidence, unless it directed otherwise (rule 94). The test required the Tribunal to be satisfied that the Claimant was ‘likely’ to succeed on each necessary aspect of the claim (His Highness Shake Bin Sadr al Qasimi-vRobinson UKEAT/0281/17 at paragraph 11), albeit that HHJ Eady QC, as she then was, stated that the approach was necessarily going to have been ‘broad-brush’ and was “very much an impressionistic one”.[6]The of ‘likelihood’ test had to be applied to all elements of the claim and, in a public interest disclosure case, there were many facets to that test (Simply Smile Manor House Ltd and others-v-Ter-Berg [2020] ICR 270, EAT) which were set out in the stepped approach recommended in the case of Williams-vMichelle Brown UKEAT/0044/19/00; i. First, a tribunal would have to assess whether there had been disclosures of ‘information’ or facts, which was not necessarily the same thing as a simple or bare allegation (see the cases of Geduld-v-Cavendish-Munro [2010] ICR 325 in light of the caution urged by the Court of Appeal in Kilraine-v-Wandsworth BC [2018] EWCA Civ 1346). An allegation could contain ‘information’. They were not mutually exclusive terms, but words that were too general and devoid of factual content capable of tending to show one of the factors listed in section 43B (1) would not generally be found to have amounted to ‘information’ under the section. The question was whether the words used had sufficient factual content and specificity to have tended to one or more of the matters contained within s. 43B (1)(a)-(f) (see, further, Simpson-v-Cantor Fitzgerald UKEAT/0016/18); ii. Next, the tribunal would have to consider whether the disclosure indicated which obligation was in the Claimant’s mind when the disclosure was made such that the Respondent was given a broad indication of what was in issue (Western Union-v-Anastasiou UKEAT/0135/13/LA). A whistleblower did not have to have had the precise legal basis of the wrongdoing asserted in his/her mind before they were protected (Twist DX-v-Armes UKEAT/0030/20/JOJ); iii. The Tribunal would also have to consider whether the Claimant had a reasonable belief that the information that he had disclosed had tended to show that the matters within s. 43B (1)(a) to (f) had been or were likely to have been covered at the time that any disclosure was made. To that extent, the objective reasonableness of the Claimant's belief at the time had to be assessed at the time that she held it (Babula-v-Waltham Forest College [2007] IRLR 3412, Korashi-v-Abertawe University Local Health Board [2012] IRLR 4 and Simpson, above). To that extent, it was a mixed objective and subjective test. ‘Likely’, in the context of its use in the subsection, implied a higher threshold than the existence of a mere possibility or risk. The test was not met simply because a risk could have materialised (as in Kraus-v-Penna [2004] IRLR 260 EAT). Further, the belief in that context had to have been a belief about the information, not a doubt or an uncertainty (see Kraus above). ‘Breach of a legal obligation’ under s. 43B (1)(b) was a broad category and has been held to include tortious and/or statutory duties such as defamation (Ibrahim-v-HCA UKEAT/0105/18); iv. Next, the tribunal would have to consider whether the disclosures had been ‘in the public interest.’ In other words, whether the Claimant had held a reasonable belief that the disclosures had been made for that purpose. As to the assessment of that belief, a tribunal would have to consider the objective reasonableness of the Claimant’s belief at the time that she possessed it (see Babula and Korashi above). That test required a consideration of her personal circumstances; was it reasonable for her to have believed that the disclosures were made in the public interest when they were made? It was therefore a mixed objective and subjective test. The ‘public interest’ was not defined as a concept within the Act, but the case of Chesterton-v-Normohamed [2017] IRLR 837 was of assistance; the Court of Appeal determined that it was the character of the information disclosed which was key, not the number of people apparently affected by it. Further, there was no need for the ‘public interest’ to have been the sole or predominant motive for the disclosure. As to the need to tie the concept to the reasonable belief of the worker; “The question for consideration under section 43B (1) of the 1996 Act is not whether the disclosure per se is in the public interest but whether the worker making the disclosure has a reasonable belief that the disclosure is made in the public interest” (per Supperstone J in the EAT, paragraph 28).The position was to be compared with a disclosure which was made for purposes of self-interest only, as in Parsons-v-Airplus International Ltd UKEAT/0111/17); v. Next, the Claimant would have to show that the disclosures had been made to the right class of recipient (ss. 43C-H); vi. Then, there was the issue of causation; were the disclosures the reason, or principal reason, for her dismissal? Since the Claimant lacked the requisite service to bring an ordinary unfair dismissal claim, the burden was on her to prove the reason for dismissal under s. 103A on the balance of probabilities (Smith-v-Hayle Town Council [1978] ICR 996, CA and Tedeschi-v-Hosiden Besson Ltd EAT 959/95) and that was a greater burden than the requirement to merely prove a prima facie case if she had had two years’ service under Kuzel-vRoche [2008] IRLR 530; Ross-v-Eddie Stobart [2013] UKEAT/0068/13/RN. Discussion and conclusions[7]In the Claimant’s Claim Form, she alleged that ‘across multiple meetings between March and October 2025’ she had ‘raised consistent and specific safety concerns about working in unknown households without risk information or personal safety equipment’. She believed that a promise to provide such information was withdrawn, that her concerns were linked to her mental health (her neurodivergent needs) and that they were ultimately used as reasons for extending her probationary period and terminating her contract.[8]Upon receipt of the claim, the Tribunal wrote to the Claimant asking for further information in relation to the disclosures; to whom they were made, how, when and their contents. In a lengthy reply on 17 October, the Claimant stated that;8.1 Her disclosures had included the following;8.1.1 On 12 March 2025 verbally to Ms Rich (at induction);8.1.2 On 22 May 2025 verbally to Ms Julian (during supervision);8.1.3 On 2 June 2025 verbally to Ms Rich;8.1.4 On 14 and 15 July 2025 by email to Ms Rich;8.1.5 On an unspecified date verbally to Ms Redfern;8.1.6 On an unspecified date verbally to Ms Julian (during supervision);8.2 The disclosures had concerned the safety of her team in relation to outreach working at unknown households and door-knocking generally without prior safety checks having been undertaken and/or without safety devices having been provided (akin to those used by other outreach professionals such as social workers) and specific concerns in relation to a high-risk resident which had been raised at a local surgery on 29 April;8.3 That she believed that her disclosures were linked to her dismissal because she had received positive feedback about her performance prior to the probation meeting on 11 September. The extension to her probationary period and the termination of the contract could not, therefore, have been linked to performance.[9]In addition to the Claim Form and further information, a significant amount of documentary material was produced for the hearing; a 45 page bundle of documents, 17 pages of supplementary evidence, a witness statement from one of the Claimant’s colleagues, Ms Spearpoint and some heavily redacted and anonymised emails dated 15 October 2025. As stated above, it was not the Tribunal’s function to evaluate this evidence as if it was a summary trial. Rather, it had to form a broad, impressionistic view of the chances of success on the basis of what it saw and what the parties submitted.[10]Yesterday, the Respondent had filed its response which had not ben processed by the Tribunal and/or referred to a judge. Mr England also produced written submissions for the hearing.[11]On that basis of the approach reiterated in paragraph 9 above, it was reasonable to conclude that the Claimant was likely to demonstrate that the disclosures that she relied upon had been made to individuals within her employer’s management structure within the meaning of s. 43C and that at least some of them had broadly concerned the health and safety of her and her team such that such the requirements within paragraphs 6 (ii) and (v) above were likely to have been met. Although the focus of many of the disclosures appeared to have been her own safety, her broader team were referred to and it also appeared likely that at least some would be found to have been made in the public interest (paragraph 6 (iv) above)[12]The detail of what was alleged to have been said was, however, more difficult to discern and it was not easy to tell whether they were likely to be found to have contained sufficient information so as to have qualified under s. 43B (paragraph 6 (iii) above). Mr England asserted that the alleged disclosures remained “vague and general”. On a simple reading of the further information provided on 17 October, it might have seemed likely that the Claimant would be capable of passing that hurdle, but the documents themselves suggested otherwise; the notes of the meetings of 22 May and 2 June 2025 for instance reflected rather generalised discussions about broad anxieties and concerns, rather than specific or targeted disclosures of specific health and safety information. As Mr England put it, phrases like ‘I am worried about..’ were unlikely to meet the test.[13]The Claimant disputed the accuracy of some of the documents, but none of her own were produced and it seemed likely that a Tribunal would accept the minutes to have been the most reliable account of the discussions in the absence of clear evidence to the contrary.[14]Although not specifically advanced by Mr England, there may have been other doubts in relation to the reasonableness of the belief that the Claimant held in relation to the risks (paragraph 6 (iii) above). She asserted that her concerns had been dismissed on the basis that they had emanated from her ‘neurodivergent needs’ (see her Claim Form). If she was right, there was a prospect of the Respondent alleging that her concerns had not been reasonably held.[15]More fundamentally, as was so often the case, the main battleground in the claim was the issue of causation (paragraph 6 (vi) above).[16]At a probationary review meeting on 11 September 2025 at which the Claimant alleged that her probation was extended for administrative or ‘procedural’ reasons only, she alleged that her managers had shown frustration at her request for safety checks to have been undertaken in respect of outreach work. She said that she was told that they were not going to have taken place and that “no other CHWW [Community Health and Wellbeing Workers] employers were doing so.” In effect, it was her case that she and her managers exchanged their views about safety checks, they disagreed, she thanked them for their time and they parted company (see page 5 of her document of 17 October). There was no suggestion, at that point, that the Respondent expressed views about her continued employment. Nevertheless, two weeks later, the Claimant received a letter confirming that her probation had been extended for reasons other than those discussed at the meeting. She did not accept the reason in the letter and refused to sign. That then resulted in a stand off at a further meeting on 30 September after which her contract was terminated.[17]It was clear from the response and Mr England’s submissions, that the Respondent’s case was that the probationary extension was partly as a result of her continuing unease about aspects of her role, but was also because of concerns about her workload, homeworking and clashes with her manager (which the Claimant was acknowledged as having accepted to some extent).[18]In relation to her unease, various meeting minutes had clearly reflected anxiety, nervousness and concern having been expressed by her about the Respondent’s protocols around personal safety (see the meeting minutes of 2 June, 1 July, 6 August and 11 September). Following that latter meeting, a letter was prepared which included one of three reasons for an extension to her probationary period as follows; “Confidence in the nature of your outreach role | While you have made good progress, further time is needed to ensure your confidence grows further in the outreach nature of this role working in service users’ homes independently and knocking on residents’ doors.” That letter appeared to fairly reflect the notes of the meetings which had preceded it.[19]The Claimant’s subsequent refusal to sign the letter was expressed to have been on the basis that that reason was wrong (her email of 30 September). She did not appear to accept that she had the anxieties or concerns which had been recorded in the meetings. Rather, she seemed to suggest that she was entirely comfortable with the work that she was undertaking; “I have attended multiple home visits and offered home visits to all clients; additionally, our team have knocked on nearly 200 households within the first 3 months of working outreach. Due to this, I cannot accept this as a reason for my probation extension.”[20]On the basis of her own case, there could have been little doubt that she ‘lacked confidence’ in the manner in which the outreach role was being conducted. It was the basis upon which she claimed to have made disclosures and it was a broad theme that ran through the meeting minutes. Why did she then refuse to sign a letter which appeared to accurately reflect the reality of the situation as it was then? That caused the pinch point at the meeting on 30 September.[21]What then happened was a point of factual dispute. The notes of the meeting read as follows, although the Claimant challenged their accuracy; “Sharon explained that if Ruth was not in agreement with the areas of development stated in the letter, then her contract would be ended today, as she did not pass her probation. At that point, only a few minutes into the meeting, Ruth stood up and reported that she didn’t want to work here anyway and that she was thinking of leaving, and then left the room.”[22]The Respondent will argue, with some force perhaps, that the Claimant’s employment ended because of her refusal to accept the points of development that had been brought to her attention, not because she had blown the whistle. As Mr England said, the documents appear to indicate that the Respondent had been receptive and open to health and safety issues which the Claimant, or others, had raised.[23]Accordingly, on the basis of the documents and the claim as it was framed, it did not appear likely that the issue of causation and dismissal would be determined in the Claimant’s favour. That was not to say that the claim was weak or doomed to failure, but the test under s. 128 had not been met and the application for interim relief failed and was dismissed.[24]The parties would receive notification of a Case Management Preliminary Hearing in due course.