Ms J Alves da Silva v The Isle of Wight College: 6037524/2025
EMPLOYMENT TRIBUNALS
Case No 6037524/2025
Between
Ms J Alves da SilvaClaimantThe Isle of Wight CollegeRespondent
Before
Employment Judge HastieIn person for claimantMs D Colton for respondentDate 1 November 2025
JUDGMENT
[1]The Claimant’s application for interim relief brought under section 128 of the Employment Rights Act 1996 is dismissed.
REASONS
[1]The claimant’s application for interim relief was dismissed on 22 October 2025.[2]Judgment having been sent to the parties on 24 November 2025 and reasons having been requested by the claimant in accordance with Rule 60 of The Employment Tribunal Procedure Rules. Background and hearing[3]The purpose of the hearing of 22 October 2025 was to determine the claimants application for interim relief.[4]By a claim form presented on 10 October 2025, the claimant brought claims for public interest detriment (whistleblowing), and automatic unfair dismissal. In relation to the unfair dismissal claim, the claimant applied for interim relief.[5]At the start of the hearing, the respondent sought an adjournment on the basis that it was served with notice on the 21 October 2025. The claimant opposed any adjournment on the grounds that the application was urgent. I took a break to enable the respondent to provide further instructions to Ms Colton. On resumption of the hearing, the respondent expressed a preference for an adjournment but accepted that it could proceed with the hearing if further time to prepare was permitted. I was able to accommodate a break of just over 2.5 hours, and I determined that the hearing should proceed having provided the respondent with this time to prepare. The parties did not object to that course of action.[6]I was provided with a bundle of 99 pages and a witness statement from the claimant dated 21 October 2025. I heard oral submissions from both the claimant and Ms Colton during the hearing. As is usual, I did not hear oral evidence. My understanding of the case is based on the bundle and the submissions. Summary chronology based on the claimant’s account[7]The claimant commenced employment with the respondent on 12 October 2023 as an engineering lecturer. She worked 39 hours per week and was based at the CECAMM Centre. Her job mainly involved planning and delivering lessons to a range of classes, assessing learner progress, formally assessing learners and providing feedback.[8]The claimant says that she made it clear on a number of occasions between November 2023 and June 2024 that she was stressed. The claimant was on sick leave from 14 June 2024 to 18 November 2024 and diagnosed with generalised anxiety disorder. Between 28 March 2025 and 31 May 2025, the claimant was off work due to work related stress. The claimant returned to work on 2 June 2025. Her knee pain increased, she says, due to the respondent not replacing her chair. The claimant was subsequently signed off work between 2 July 2025 and 29 July 2025. The claimant was further signed off work between 5 September 2025 and 8 November 2025.[9]Between December 2024 and March 2025, the claimant says she became increasingly concerned about health and safety risks to students.[10]On 2 July 2025 the respondent informed the claimant that she was under investigation. A meeting scheduled for 10 July 2025 was moved to 20 August 2025. On 21 July 2025, the claimant requested details of any allegations against her. On 5 August 2025 the claimant requested that the 20 August meeting be postponed. On the 18 August 2025 the claimant informed the respondent that she was too ill to attend the meeting. On the 19 August 2025 the respondent offered the claimant an occupational health referral. On 5 September 2025, investigation questions were sent to the claimant.[11]The claimant raised a grievance on 29 July 2024 and listed whistleblowing concerns in relation to health and safety, breaches of legislation, and internal policies. The claimant asserts that the investigation into this grievance was flawed.[12]On 27 August 2025 the claimant raised GDPR concerns to the respondents data protection officer.[13]On 3 October 2025 the claimant was dismissed for some other substantial reason (SOSR). According to the claimant she had no capability or conduct issues raised with her prior to July 2025.[14]The claimant says she made qualifying and protected disclosures between February 2024 and March 2025. These can mainly be summarised as, i) The respondents failure to maintain CECAMM machines and ensure the health and safety of staff and students from December 2024, and reporting an unidentified man on the premises in February 2025. ii) Breaches of GDPR February and August 2024 (concerning an occupational health referral) and March 2025 (concerning the implementation of the observations policy).[15]In her grounds of claim, the claimant identifies disclosures a) to t) (20 in total) dated between 16 December 2024 and 27 March 2025. These were primarily raising health and safety concerns. Respondents case[16]This application is made at a stage before the respondent has presented the ET3 response and only being on notice of the proceedings since 21 October 2025.[17]My understanding is that the respondent’s case is that it does not accept at this stage that the claimant made disclosures in the manner she asserts. The respondent appears to accept that the claimant raised a number of allegations.[18]The respondent accepts that the claimant raised a grievance on 29 July 2024. The respondent does not accept at this stage that the grievance was a protected disclosure. I have no further details of the grievance before me. The respondent’s reasons for dismissal[19]The respondent says its reasons for dismissal were some other substantial reason (SOSR), being an irreparable breakdown in the employment relationship. The respondent asserts that there was evidence to suggest that the claimant had provided inappropriate feedback, misused teaching and non-teaching time, rearranged a timetable without approval, behaved unprofessionally, demonstrated insubordination, shouted at colleagues, and contributed to a breakdown in working relationships. The dismissal resulted from the respondent’s view that there was a case to be answered which would justify disciplinary action on the nine grounds specified in the letter of 3 January. However, the respondent took the further view that trying to schedule a disciplinary hearing would be futile and, due to the breakdown in the employment relationship, the claimant was dismissed. The proceedings[20]On 10 October 2025 the claimant brought an application for interim relief pursuant to s128 ERA96 on the basis that she was dismissed for the sole or principal reason that she had made a protected disclosure, a claim falling under s47B ERA96.[21]The Claimant also provided an ET1 bringing a claim for automatic unfair dismissal under s 103A ERA96 and detriment (whistleblowing).
Law
[22]By virtue of s.94 Employment Rights Act 1996 (ERA96), employees have, subject to certain conditions, a right not to be unfairly dismissed. By s.103A ERA96, where the reason, or if more than one, the principal reason for dismissal is that the employee made a protected disclosure within the meaning of s.43B ERA96, the dismissal is automatically unfair.[23]Section 128 ERA96 allows an application for interim relief to be made pending determination of a complaint of certain types of unfair dismissal. Claims under s103A ERA96 allow applications for interim relief to be made. Section 129(1) provides that an application for interim relief should be granted if it appears to the tribunal that it is likely that on determining the complaint to which the application relates, the tribunal will find that the reason or principal reason for dismissal was one of the statutory automatically unfair reasons.[24]In order to determine whether ‘it is likely’ the claimant will succeed at a full hearing the EAT said in London City Airport v Chacko 2013 ILR 610, that this requires the Tribunal to carry out an ‘expeditious summary assessment’ as to how the matter appears on the material available. The tribunal on an application for interim relief will do the best it can with the untested evidence advanced by each party. Clearly this involves less detailed scrutiny than will be undertaken at the full final hearing.[25]Rule 94 of The Employment Tribunal Procedure Rules 2024 provides that the hearing should be conducted as a Preliminary Hearing within Rules 52 to 54. The proper approach is as follows (Parsons v. Airplus UKEAT/0023/16/JOJ4 March 2016 at para [8]): ‘On hearing an application under section 128 the Employment Judge is required to make a summary assessment on the basis of the material then before her 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. In giving reasons for her decision, it is sufficient for the Judge to indicate the “essential gist of her reasoning”: this is because the Judge is not making a final judgment and her decision will inevitably be based to an extent on impression and therefore not susceptible to detailed reasoning; and because, as far as possible, it is better not say anything which might pre- judge the final determination on the merits.’[26]To succeed in an application for interim relief, The claimant must show that her case has a pretty good chance of success, which means something nearer to certainty than mere probability (Ministry of Justice v Sarfraz [2011] IRLR 562.[27]The tribunal must be satisfied that the claimant is likely to succeed on each necessary aspect of her claim applying that high threshold, before relief can be granted. That is, that it is likely the claimant made a protected disclosure within the statutory definition and that it is likely that it was the sole or principal reason for her dismissal. Law on protected disclosures[28]Section 43B ERA96 provides – A qualifying disclosure is any disclosure of information which, in the reasonable belief of the worker making it, is made in the public interest and tends to show (in terms of its relevance here) - i) failure to comply with a legal obligation, ii) the health or safety of a person is endangered, v) that information tending to show these matters is being concealed.
CONCLUSION
[29]It is not for me to make findings of fact. I am reliant on the parties to set out material facts for each side. There has not been any oral evidence. I reiterate that this has been a summary assessment based on the information I have before me. It may be that at the final hearing, different conclusions on the facts are made.[30]I have considered whether there is pretty good chance that the tribunal at the final hearing will find the following things, i) that the claimant made a disclosure to her employer, ii) that she believed that that disclosure tended to show one or more of a failure to comply with a legal obligation, that health and safety of a person was endangered, or that information tending to show these matters was being concealed. iii) that she believed that the disclosure was made in the public interest, iv) that those beliefs were reasonable, and v) that the disclosure was the principal reason for her dismissal. 29. i) Whether disclosures were made The claimant asserts twenty disclosures during the period December 2024 to March 2025. The respondent does not currently accept that disclosures were made. On a summary assessment, I consider that there is a pretty good chance that the tribunal would find some of the issues raised by the claimant amounted to disclosures of information. The claimant appears to have put some or all of her asserted disclosures in writing to the respondent. They are extensive and across time. Based on the claimant’s information, it appears likely that the health and safety concerns she raises via email to the respondent may be found to be disclosures including those in her grounds of claim at a), c), d), e), f), j), and i) to n). On the other hand, it appears that there may be a dispute of fact between the claimant and respondent about whether some of the asserted disclosures were made, or whether disclosures of information may be cumulative across a number of communications. It may be that the content of the grievance supports the claimant’s case, but I do not have that. It is difficult for me at an application hearing to anticipate how these issues will conclude. I am not able to conclude at this early stage that the claimant has a pretty good chance of succeeding in the dispute of fact in respect of some of the asserted disclosures, such as b), o), p), and q) in the grounds of claim. ii) Whether the claimant believed that disclosure tended to show a relevant failure The claimant asserts that she believed that the disclosures tended to show the alleged failures, and these are indicated in the bundle. I bear in mind that a belief for these purposes may be mistaken yet genuinely held. It appears that the claimant may have a pretty good chance of establishing that some of the disclosures she made tended to show a relevant failure when considering her asserted expertise in health and safety. iii) Whether the claimant believed the disclosure was made in the public interest It appears that there is a pretty good chance of the claimant establishing this in relation to some of the asserted disclosures given the relatively low threshold in relation to public interest. A sub category of colleagues who are affected, such as students, might be enough to satisfy the public interest requirement. iv) Whether the claimant’s beliefs were reasonable I consider that there is a pretty good chance that the tribunal will find that the claimant believed that some of the disclosures tended to show a health and safety failure given the reference to the risks contained in her correspondence and her apparent qualifications in identifying such issues. v) Whether the protected disclosure was the sole or principal reason for the dismissal The test for this application is whether the claimant has a pretty good chance of establishing that the sole or principal reason for dismissal were the protected disclosures made between 2024 and March 2025. The respondent relies on alternate reasons for dismissal. There does not appear to be sufficient detail in the bundle as to the basis of these grounds for dismissal. Indeed, the claimant sought the same prior to her dismissal in October 2025. It is not apparent whether any or all of the concerns identified in the respondent’s letter of 3 October 2025 had been previously raised with the claimant or whether she was provided with adequate detail of the allegations for her to be able to respond. If a protected disclosure, or protected disclosures were made, and it appears pretty likely that they were, were they the principal reason for dismissal? The respondent asserts that there were a series of intervening acts that undermine the claimant’s case that her dismissal was due to her making protected disclosures. I do not have adequate information before me to be clear as to the basis of this assertion by the respondent. What is clear though, is that there is a factual dispute as to causation. The respondent advances a breakdown in the employment relationship which may be plausible at this stage, and before hearing evidence. I note that the issues raised by the respondent in the letter of 3 October 2025 as being the basis upon which it is concluded that the breakdown has occurred, date from as early as January 2025. Despite this, the claimant was not informed that she was under investigation until July 2025. It is not clear if concerns were raised with her prior to July 2025. The claimant cannot convincingly say that the case will ultimately go in her favour. The facts need to be established at a full hearing. I cannot say at this stage that the claimant is pretty likely to succeed in her claim. 30. In circumstances where there are reasons to believe at this stage that there may have been multiple causes for the claimant’s dismissal, and factual matters are in dispute, I do not find, based on the material before me, that I can conclude that the claimant has a pretty good chance of showing that the principal reason for her dismissal was making a protected disclosure. That is not, of course, to say that the Claimant will not succeed at a final hearing. It is simply to say that on the basis of the information before me today, she has not demonstrated that she is likely to succeed.[31]Accordingly, the claimant’s application for interim relief is dismissed.[32]This decision has no bearing on the substantive merits of the complaints which have been raised, they will be considered further at a case management hearing once the respondent has submitted its response form. I did note to the parties that it was not clear whether the claimant is bringing a claim in relation to disability and this may need to be considered at the case management stage.