Case No 8000574/2025Venue EdinburghHearing 14 March 2025
Between
Lorenzo LuzzaniClaimantGrip-UK LTDRespondent
Before
Employment Judge M SutherlandDate 18 March 2025
JUDGMENT
The judgment of the tribunal is that the claimant’s application for interim relief under Section 128 of the Employment Rights Act 1996 is refused.
REASONS
Reasons were provided orally. Written reasons will not be provided unless they are asked for by any party in writing within 14 days of sending the written record of the decision. REASONS FOR JUDGMENT Written reasons[1]An oral judgment was given together with reasons was given at the hearing on 14 March. The judgement of the tribunal was that the claimant’s application for interim relief was refused. The claimant has exercised his right to seek written reasons within 14 days. E.T. Z4 (WR)
Introduction
[2]The claimant brings a complaint of under section 103A of the Employment Rights Act 1996 (‘ERA’), namely that the reason for his dismissal was that he made one or more protected disclosures. The complaint arises from his employment with the respondent between 1 May 2024 and 25 February 2025. The claimant applied for interim relief on that basis and a hearing was set down to determine that application.[3]The parties lodged a bundle of productions on the morning of the hearing.[4]The ET3 response is due by 3 April and had not yet lodged but the Respondent advised that the complaints were denied.[5]Both parties gave detailed oral submissions in relation to the application with reference to the documents. No oral evidence was led.[6]The following initials are used by way of abbreviation in this judgment – Initials Name Job Title CM Calum Murdoch Kitchen Manager DT Deborah Thomas HR MC Mick Crosby Senior Operations Manager NM Nicola McMaster General Manager ZF Zeph Fenn Kitchen Crew[7]It was confirmed that the claimant relied upon the following act which he asserted were disclosures under Section 43A ERA which he believed was in the public interest of customer safety and tended to show health and safety endangerment, breach of a legal obligation, and deliberate conclamant thereof:a. On 25 October 2024 he disclosed to NM by email that the kitchen was dirty and that and bathroom cloths were washed together (‘PD a’);b. On 4 February 2025 he disclosed to CM verbally that there was no hot water to wash hands before serving food or preparing drinks (‘PD b’);c. On 11 February 2025 he disclosed to NM by email that there was no hot water to wash hands before serving food or preparing drinks; he had to wash his hands in boiling water (‘PD c’);d. On 11 February 2025 he disclosed to MC by email that staff we not cleaning tables and not washing their hands (‘PD d’).e. This disclosure was made by ZF and not by the claimant and accordingly was not on the face of it a disclosure made by him (‘PD e’).f. This was not on the face of it a disclosure because it sought a reply rather than made a disclosure of information (‘PD f’). The claimant confirmed he did not reply upon disclosure f. for the purposes of this hearing.[8]The claimant confirmed he did not reply upon PD e and PD f. for the purposes of this hearing. Relevant law Interim relief
Relevant law
[9]Section 128 of the Employment Rights Act 1996 (ERA) states: (1) An employee who presents a complaint to an employment tribunal that he has been unfairly dismissed and— (a) that the reason (or if more than one the principal reason) for the dismissal is one of those specified in— (i) section 100(1)(a) and (b), 101A(1)(d), 102(1), 103 or 103A, or… may apply to the tribunal for interim relief.[10]In order to succeed in an application for interim relief, the claimant must show that it is ‘likely’ that the complaint of unfair dismissal will succeed (section 129 ERA).[11]This has been interpreted as requiring the Tribunal to be of the view that, when the case proceeds to a hearing, there is ‘a pretty good chance of success’ for the claim. This means more than just the balance of probabilities (Taplin v C Shippam Ltd [1978] IRLR 450) and involves a ‘significantly higher degree of likelihood’ than more likely than not (Ministry of Justice v Sarfraz [2011] IRLR 562). The burden on a claimant in an application of this type is therefore greater than it is at a full hearing.[12]The Tribunal hearing an application for interim relief has a difficult task as it involves an assessment of the papers available and submissions made. The Tribunal requires to undertake a broad assessment on the material available. The application is to be determined expeditiously and on a summary basis. The Tribunal has to make as good an assessment as it feels able to do. The correct approach was summarised by Her Honour Judge Eady QC in Al Qasimi v Robinson EAT 0283/17 as follows: ‘By its nature, the application had to be determined expeditiously and on a summary basis. The ET had to do the best it could with such material as the parties had been able to deploy at short notice and to make as good an assessment as it felt able. The ET3 was only served during the course of the hearing and it is apparent that points emerged at a late stage and had to be dealt with as and when they did. The Employment Judge also had to be careful to avoid making findings that might tie the hands of the ET ultimately charged with the final determination of the merits of the points raised. His task was thus very much an impressionistic one: to form a view as to how the matter looked, as to whether the Claimant had a pretty good chance and was likely to make out her case, and to explain the conclusion reached on that basis; not in an over-formulistic way but giving the essential gist of his reasoning, sufficient to let the parties know why the application had succeeded or failed given the issues raised and the test that had to be applied.’[13]Where the main or principal reason for dismissal is that the claimant made a protected disclosure then the dismissal will be unfair under s103A of the 1996 Act. This is one of the categories of “automatic” unfair dismissal where the reason for dismissal alone renders it unfair. Protected disclosure[14]Section 43A ERA provides: “In this Act 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.”[15]A qualifying disclosure is defined in section 43B ERA as “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. …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. …d. That the health or safety of any individual has been, is being or is likely to be endangered;e. …f. That information tending to show any matter falling within any one of the preceding paragraphs has been, or is likely to be deliberately concealed.”[16]In Kilraine v London Borough of Wandsworth [2018] EWCA Civ 1436, at paragraphs 35 and 36, the Court of Appeal set out guidance on whether a particular statement should be regarded as a qualifying disclosure: “35. The question in each case in relation to section 43B(1) (as it stood prior to amendment in 2013) is whether a particular statement or disclosure is a ‘disclosure of information which, in the reasonable belief of the worker making the disclosure, tends to show one or more of the matters set out in subparagraphs (a) to (f).’ Grammatically, the word ‘information’ has to be read with the qualifying phrase ‘which tends to show [etc]’ (as, for example, in the present case, information which tends to show ‘that a person has failed or is likely to fail to comply with any legal obligation to which he is subject’). 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 (1).” “36. Whether an identified statement or disclosure in any particular case does meet that standard will be a matter for evaluative judgment by a tribunal in light of all the facts of the case. It is a question which is likely to be closely aligned with the other requirement set out in section 43B(1), namely that the worker making the disclosure should have the reasonable belief that the information he discloses does tend to show one of the listed matters. As explained by Underhill J in Chesterton Global at [8], this has both a subjective and an objective element. If the worker subjectively believes that the information he discloses does tend to show one of the listed matters, and the statement or disclosure he makes has a sufficient factual content and specificity such that it is capable of tending to show that listed matter, it is likely that his belief will be a reasonable belief.”[17]In Simpson v Cantor Fitzgerald Europe [2020] ICR 236, the EAT confirmed these principles, stating: ’43...As the Court of Appeal in Kilraine v Wandsworth London Borough Council [2018] ICR 1850 made abundantly clear, in order for a statement or disclosure to be a qualifying disclosure, it has to have sufficient factual content and specificity such as is capable of tending to show breach of a legal obligation. 69. The tribunal is thus bound to consider the content of the disclosure to see if it meets the threshold level of sufficiency in terms of factual content and specificity before it could conclude that the belief was a reasonable one. That is another way of stating that the belief must be based on reasonable grounds. As already stated above, it is not enough merely for the employee to rely upon an assertion of his subjective belief that the information tends to show a breach.’[18]Where, as it is here, interim relief is sought in a whistleblowing case under section 103A ERA, the claimant must show that it is likely that the Tribunal will find that:a. the claimant made disclosure(s) of information to the employer;b. the claimant believed that it or they tended to show one or more of the matters itemised in s43B(1) ERA;c. the claimant’s belief in that was reasonable;d. the claimant reasonably believed that the disclosure(s) was or were made in the public interest; ande. the disclosure(s) was or were the principal cause of the dismissal.[19]The likelihood of establishing each of the necessary elements essential to the claim has to be considered on a preliminary basis at an interim relief hearing. It follows from that that, unless all aspects are established as likely, the application for interim relief cannot be upheld. Discussion & Decision[20]The Tribunal reminded itself that, in terms of the application for interim relief, the relevant claim was that under s103A ERA, as this was what gave the claimant the right to make the application under s128.[21]The Tribunal also reminded itself that the question to be asked was whether it was “likely”, on the material available to the Tribunal, the claimant would succeed in his claim under s103A. The Tribunal was not making any conclusive findings of fact or law in relation to that claim.[22]The Tribunal agreed with the submission from the respondent’s agent that it was required to consider whether the claimant was likely to succeed on all the issues to be determined at the final hearing in relation to the s103A claim. This included not just the question of whether the main or principal reason for the claimant’s dismissal was that he made a protected disclosures, but also whether protected disclosures had been made. Protected disclosure(s)[23]The Tribunal first considered whether the claimant is likely to show that he made protected disclosure(s).[24]In respect of PD a. it appears that the claimant emailed NM on 25 October 2024 stating “Just so you know the washing go mixed up against today with serious cross contamination at least the second time this week” but did not expressly describe kitchen and bathroom clothes being washed together and evidence will require to be heard as to whether that can reasonably be inferred. The email did not appear to refer to the kitchen being dirty.[25]PD b was a verbal exchange on which there would require to be oral testimony at a final hearing as to what was said.[26]In respect of PD c, his email to NM on 11 February appeared on the face of it to be a complaint about the risk to the claimant in using boiling water to wash his hands and not about the health and safety risk to customers of there being no hot water.[27]In respect of PD d the claimant emailed MC on 11 February advising staff “not cleaning tables”; “not washing hand before servicing customers.” No details were given about who or when but he was happy share more details.[28]There was no evidence of concealment but rather, as the claimant put it, a failure to action his concerns.[29]Without hearing evidence about the context in which those emails were sent and received it cannot be said that the claimant has a sufficiently high degree of likelihood of showing that he made a disclosure of information about a specific food safety issue which in his reasonable belief was in customer interest and tended to show endangerment to health and safety etc. Reason for dismissal[30]The Tribunal then considered whether the claimant was likely to show that he was dismissed because he made protected disclosures.[31]It appears that under the respondent policy if a worker is concerned that a manager is involved in the wrongdoing, or has failed to properly investigate, he should inform a director of the company who will arrange for another manger to make enquiries. The claimant did not report it to a director under asserted explanation he understood he required to raise it in line to the next manager.[32]It appears the claimant successfully completed his promotion to a very good standard and that he was maintaining that standard when he was assessed by colleagues in January.[33]The claimant asserts that he had previously raised issues regarding communication with management e.g. in July 2024.[34]The claimant emailed NM on 25 October 2024 noting that his relationship with Eric, Deputy Manager “got heated” over the claimant finding himself on duty without ingredients. He described feeling “incredibly frustrated”.[35]On 11 February the claimant emailed MN asserting that CM told him to follow his standards in the kitchen and front of house was not his concern[36]On 11 February the claimant emailed MC raising ideas for incentives or bonus scheme, it referred to him asking for a pay rise and being told that it could not be justified unless he was promoted and that there was procrastination. It noted that with frustration and a bit of a shock he found out that one of his colleagues has been promoted who had shorter service. He stating that “all of thing I have written come from a place of frustration that has been brewing for months now...I would like to see my inputs and efforts are considered and appreciated”.[37]The claimant asserted that for the last couple of months NM and CM had had not investigated his complaints and had failed to communicate with him.[38]The respondent referred to an investigation report prepared by DT, HR that the claimant had not previously seen into allegations regarding bullying and harassment by the claimant dated 25 February. The claimant advised that he had been told by his colleague and friend Zeph Fenn that HR had been up and holding meetings when he was not in the office on 24 February.[39]It is understood that the claimant attended a meeting with DT, HR and NM at which only DT spoke and it was DT who communicated the decision to dismiss. It appeared on the face of it that it was DT who made the decision to dismiss. The letter of dismissal issued by email on 5 March referred to stated that the reason for the dismissal was that his behaviour at times has been inappropriate and these did not pertain to him raising issues of food safety e.g. him upsetting an employee as they had been promoted before you.[40]The dismissal letter noted a recorded discussion regarding inappropriate behaviour on 25 October.[41]There is obviously a dispute between the parties as to the reason for dismissal. The Tribunal reminded itself that it was not its purpose today to resolve that dispute (especially given that no evidence is led at interim relief hearings) and that the question is whether the claimant is likely to show that he was dismissed for making a protected disclosure.[42]Given the claimant’s apparent frustration regarding the lack of promotion which he repeatedly expressed, given the claimant’s admittedly heated exchange with Eric, DM on 24 October for which it was apparent he was admonished and which was borne out of frustration with about running out of cooking ingredients, given the apparent investigation by HR on 24 February of which the claimant was aware via his colleague, it cannot be said that the claimant has a sufficiently high degree of likelihood of showing that protected disclosure was the principal for his dismissal.[43]The elements of the claimant’s case accordingly cannot be said, on a broad assessment, to have a pretty good chance of success. They may or may not be successful when all the evidence is heard and when documents are spoken to. That is a different matter. Hearing of evidence is necessary in the Tribunal’s view to be able to determine the context and to come to a decision on these matters.[44]The application for interim relief was therefore refused. 28 March 2025