Miss C McGibbon v Transport for London and London Underground: 6038425/2025
JUDGMENT
The claimant’s application for interim relief fails and is dismissed.[1]The Tribunal gave reasons at the preliminary hearing, and a summary of those reasons is provided below. The Tribunal determined that the Claimant had brought his application for interim relief within 7 calendar days immediately following the date of her dismissal and accordingly pursuant to Section 128(2) of the Employment Rights Act 1996 the Tribunal therefore has jurisdiction to consider this interim relief application.[2]The Tribunal was advised by the Respondent that the Claimant was employed by London Underground not London Transport.[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 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 her application for interim relief the Claimant must show that she has a "pretty good" chance of succeeding in proving all the elements of her automatically unfair dismissal claim i.e. that she made a disclosure of information , that she had a reasonable belief that the disclosure was in the public interest and tended to show one of the six categories of failure as specified in the statute and were discussed at the hearing.[9]Further the Claimant must show that she has a "pretty good" chance of succeeding in proving that the reason or principal reason for her dismissal was that she had made protected disclosures.[10]During the hearing the Tribunal was referred extensively to the judgement that was issued to the parties on the 16 July 2025 in respect of claims brought by the Respondent against the Respondents. The Respondents will be relying on the findings of the judgement at the final hearing and also considered it relevant to the interim relief hearing. I will not rehearse the entire judgement here, though it was discussed by both parties, but relevant passages include reference to the claimant asserting matters in her witness statement that she must have known were not true and when facing this issue in cross-examination.[11]The Respondent explained that this was a difficult position for the employer as the Claimant had been found not have been open and transparent with the Respondent. However, she was invited to attend a conference on the 20 May 2025 in order to establish a working relationship moving forward.[12]The Tribunal was taken through the disclosures. The Tribunal was persuaded that this information did not sufficiently demonstrate concerns in respect of the public interest and related to the Claimants own circumstances.[13]As mentioned above the Tribunal is required to carry out a summary assessment and not make finding of fact. The law on interim relief is long-established and settled and was contained in the parties’ skeleton arguments.[14]The EAT in Al Qasimi v Robinson (UKEAT/0283/17) emphasised that the test of likelihood is ‘a relatively high bar for a claimant’ (paras.9- 10). In Wollenberg v Global Gaming Ventures (Leeds) Ltd (UKEAT/0053/18) a differently constituted EAT observed: The question is whether the claim under section 103A is likely to succeed. This does not simply mean more likely than not. It connotes a significantly higher degree of likelihood. The Tribunal should ask itself whether the Applicant has established that he has a pretty good chance of succeeding in the final application to the Tribunal. = The Claimant is therefore only entitled to interim relief if they can persuade the Tribunal that they have significantly better than even chance of succeeding with all of the ingredients necessary to win a claim under s.103A ERA.[15]To summarise the various authorities, 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 is conducting an expeditious summary assessment doing the best it can with untested evidence.[16]Interim relief is not something which should be granted lightly.[17]In light of those comments, the claimant has to establish that her case is nearer to certainty, rather than a mere possibility. That she has a higher degree of certainty than reasonable prospects of success; she 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 her dismissal was due to the protected disclosures she made.[18]I have considered the skeleton arguments provided by both the Claimant and the Respondent and I will not repeat those submissions here. On an analysis of the extensive correspondence that was sent by the Claimant to the Respondent I consider that it is not clear whether there is information being disclosed and further they are lengthy and difficult to understand at times. I do not consider that the Claimant has passed the threshold that is required for an interim relief application that she will be able to demonstrate that she made protected disclosure and that she held a reasonable belief and that they were made in the public interest or that they tended to show one of the six categories or failure.[19]I have also had sight of the witness statement from a Mr Christ Taggart who sets out in detail for reasons for dismissal. He explains quite clearly that his reasons were due to an irretrievable breakdown in mutual trust and confidence. He was also clear that he only reviewed the complaints when it was brought to his attention in respect of how to manage the relationship moving forward.[20]I am not perused that the Claimant has shown that she has a pretty good chance of succeeding in proving that she made protected disclosures and that she was dismissed for making them. The Respondent raises facts and circumstances that are relevant and will need to be tested at the final hearing.[21]The Tribunal cannot say, at this stage that the prospects of any of these issues is nearer to certainty, rather than a mere possibility. In short, the claimant would need to provide further clarity of the disclosures she relies upon.[22]Even if the claimant is subsequently found to have made a qualifying protected disclosure, the causal link to the detriments is not at all clear. 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 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.[23]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