Employment Judge A KempMr P Singh (instructed by Solicitor) for respondentDate 21 July 2025
JUDGMENT
The application for interim relief under section 128 of the Employment Rights Act 1996 does not succeed. Introduction[1]This preliminary hearing was arranged to determine an application for interim relief made by the claimant under section 128 of the Employment Rights Act 1996 (“the Act”), The claimant alleges that his dismissal by the respondent was automatically unfair under section 103A of the Act.[2]The respondent has not yet entered appearance, which is due by 24 July 2025. It contacted the Tribunal through its agents on 8 July 2025 to state that it had become aware of the present hearing, that it had not had sight of the documentation for the claim which the respondent did not consider it had received, and sought a postponement. The claimant responded to object to the application to postpone. E.T. Z4 (WR)[3]That application was refused by me on 9 July 2025 on the basis that the respondent had been sent the documentation through its agents at around 9am that day, and had the day to prepare for the hearing, but that it could renew its application for postponement at the hearing itself.[4]The Tribunal allowed the respondent’s solicitor to attend remotely given the circumstances. The claimant attended before me in person. This was a hybrid hearing as a result.[5]The claimant sent documentation in support of his application for interim relief by email to the Tribunal and respondent on 8 July 2025, and provided a further document at the hearing. The respondent did not add to the documents but did provide a skeleton argument in advance of the hearing.[6]The respondent did not renew its application for postponement, and I therefore heard argument from each party. I wish to commend both the claimant and Mr Singh for their helpful arguments and for the work each did in preparing for this hearing.[7]Neither party argued that I should hear oral evidence, on which the cases of NASUWT v Harris UKEAT/0061/19, Dandpat (cited below) and Coyle v Ferguson Marine Ltd ET Case 4105502/20 are relevant. It is competent to do so given the terms of Rule 94, but not the norm in interim relief hearings. It appeared to me that in the circumstances of the present case it was appropriate to hear submissions only, that being the apparent intent of the Rule unless there were sufficient reasons to hear oral evidence, which neither party contended for. I therefore did not hear oral evidence, but considered the parties’ submissions, the documents that the claimant had prepared in a bundle, and an evidence schedule the claimant had helpfully prepared for this hearing, as well as his claim form.[8]For the avoidance of doubt I do not make findings in fact as if at a final hearing. I have not heard any evidence. I take the circumstances from the documentation before me, as explained during submissions, so far as I was able to. There was no dispute that the claimant had made his claim timeously for interim relief. Claimant’s submission[9]The claimant’s position was set out fully in his evidence schedule document, which he spoke to during the hearing. The following is a basic summary of his position. The claimant set out that position eloquently, and argued strongly that the only reason for his dismissal was the protected disclosures he had made. He set out those disclosures in his schedule document, and argued that they were protected disclosures. He argued that the treatment he received was so different to that of Mr Tortolano, who had acted aggressively towards him on 8 April 2025 including making racial comments that amounted to discrimination, but for whom no disciplinary action of any kind had been taken. In contrast, many weeks after the incident and contrary to contemporaneous reports at the time from him and his manager, the respondent had acted on what it alleged was his conduct and comments, but ignoring the strong mitigations that there were. He denied making the crude remarks that were alleged by two members of staff, which he said had not been raised at the time and where the staff concerned had not been able to say when it allegedly occurred. He argued that they were long serving members of staff who were friends with management and that the allegations had been concocted. He argued further that he had not been involved in any data breach, that the iPad was used by all staff, and that anyone could have accessed it and sent the email to his own email account. He had not sent the email to his own email account.[10]He also argued that he had made a series of disclosures but that the respondent had not responded effectively to them, either ignoring them or in its formal response to his grievance not dealing with it in any way appropriately. He argued further that the treatment he had received from the respondent was unfair, and that that supported his position that the real reason for dismissal was because of the disclosures he had made. Respondent’s submission[11]Mr Singh had helpfully provided a skeleton argument which referred to the law, and the authority of Sarfraz referred to below. He argued again in basic summary that the disclosures were not protected, and were not ones in the public interest. If there were disclosures made they were not the sole or principal reason for the dismissal, which was the claimant’s conduct. Mr Tortolano was not appropriate to use as a comparator as the circumstances of the case against him were different, and did not include the other matters referred to in the dismissal letter. He argued that there would require to have been a conspiracy between managers and staff at the same level as the claimant, including managers from other restaurants, in order for the claimant’s position to be accepted. He argued that that was not what had happened, and that the statutory test for interim relief was not met. The law[12]The following is a basic summary of the statutory provisions. Section 103A of the Act provides that if the reason, or if more than one the principal reason, for a dismissal is the making of a protected disclosure the dismissal shall be regarded as unfair. What is a qualifying and protected disclosure is set out in section 43A and B of the Act.[13]The provisions as to interim relief are found in sections 128 and 129 of the Act. The Tribunal can make orders for interim relief if it is “likely” that the claim for automatic unfair dismissal will succeed, to paraphrase the meaning of the section.[14]Section 128(3) states that the application shall be determined as soon as practicable. An order for continuation of a contract of employment can be made under section 130 (Mr Singh confirmed that the respondent would not re-instate or re-engage if the interim relief application were to succeed).[15]The meaning of the word “likely” for these purposes has been considered in several cases. The leading case is Taplin v C Shippam Ltd [1978] ICR 1068. The EAT held that it must be shown that the claimant has a “pretty good chance” of succeeding, and that that meant something more than merely on the balance of probabilities. That approach to the word “likely” has been followed in several subsequent decisions, for example, Dandpat v The University of Bath and Anor UKEAT/0408/09, Raja v Secretary of State for Justice UKEAT/0364/09, Ministry of Justice v Sarfraz [2011] IRLR 562 and His Highness Sheikh Khalid Bin Saqr Al Qasimi v Ms T Robinson UKEAT/0283/17/JOJ. An application for leave to appeal Dandpat on whether that was the correct interpretation of the word likely was refused by the Court of Appeal, reported at [2010] EWCA Civ 305.[16]In the case of Ministry of Justice v Sarfraz [2011] IRLR 562, which was a case regarding interim relief in the context of protected disclosures specifically, the EAT held that “likely” connotes “a significantly higher degree of likelihood” than probable. Success that is more likely than not is not sufficient.[17]It is not appropriate to attempt to decide the case as if at a final hearing – Parkins v Sodexho Ltd [2002] IRLR 109.[18]The approach to interim relief was explained in London City Airport v Chacko [2013] IRLR 610, in which the EAT considered the nature of the interim relief hearing and commented as follows: “The application falls to be considered on a summary basis. The employment judge must do the best he can with such material as the parties are able to deploy by way of documents and argument in support of their respective cases. The employment judge is then required to make as good an assessment as he is promptly able of whether the claimant is likely to succeed in a claim for unfair dismissal based on one of the relevant grounds. The relevant statutory test is not whether the claimant is ultimately likely to succeed in his or her complaint to the employment tribunal but whether 'it appears to the tribunal' in this case the employment judge 'that it is likely'. To put it in my own words, what this requires is an expeditious summary assessment by the first instance employment judge as to how the matter looks to him on the material that he has. The statutory regime thus places emphasis on how the matter appears in the swiftly convened summary hearing at first instance which must of necessity involve a far less detailed scrutiny of the respective cases of each of the parties and their evidence than will be ultimately undertaken at the full hearing of the claim.”[19]The issue of what is the reason or principal reason for dismissal has been considered in a number of cases. That has included the Supreme Court in Royal Mail Group v Jhuti [2020] IRLR 129, and earlier authorities including Co-operative Group v Baddeley [2014] EWCA Civ 658 and Abernethy v Mott, Hay and Anderson [1974] IRLR 213. The initial onus in a case where the principal reason for dismissal is alleged to be on what are often called protected grounds, and whereas here the claimant does not have the service necessary to claim unfair dismissal under section 94 of the Act, is on the claimant to raise a prima facie case, or at least the articulation of issues requiring explanation which is capable of establishing that alleged principal reason (see Dahou v Serco Ltd [2017] RIRL 81) and if that is done the onus may shift to the respondent. Discussion[20]In summary I require to consider whether the claimant is likely, in the sense of having a pretty good chance which is significantly higher than more probable than not, to succeed at the final hearing on the claim under section 103A. That is less than what may be described as absolute or near certainty, but more than likelihood, and can perhaps be paraphrased as a strong probability. I do so on the basis of what is a summary procedure, and without the benefit of hearing all the evidence that would be heard at the final hearing, with that evidence tested in cross examination. What I have before me is also that available at this stage, and may be more full at the time of a final hearing.[21]There are arguments to be made for both parties. Looking at the position from the perspective of the claimant, his dismissal did follow his raising a number of issues with the respondent, some at least of which are in my opinion likely to be regarded as protected disclosures. He has raised matters of health and safety in particular of the safety of food served to the public in a large restaurant chain. He raised the safety of members of staff working there, who he says have to rush to complete tasks when less staffed than they ought to have been. He has raised issues to do with taking breaks under the Working Time Regulations 1998.[22]It is true that he was not able to articulate the detail of health and safety breaches, but he does not require to do so. He has to have a reasonable belief of there being a breach, and a reasonable belief that that is in the public interest. It seems to me from reading both the documents he produced and the evidence schedule that he has a pretty good chance of succeeding with the argument that he did make protected disclosures.[23]The claimant strongly believes that it was those disclosures that was the reason, or principal reason, for the dismissal, he denies the allegations of gross misconduct made against him, and in simple terms argues that those alleged reasons are a form of smokescreen, fabricated by the respondent to seek to hide the real reason.[24]He has some points that support his position. They include firstly, that the 8 April 2025 incident appears to have been instigated by Mr Tortolano, who was aggressive towards him and used discriminatory language when doing so. Secondly, that Mr Tortolano was not subject to any discipline at all. Thirdly, that he was “ambushed” as he put it for the first investigatory meeting. Whilst it is not at all unusual to have no companion present for it, it is somewhat unusual not to have advance notice of it taking place and what might be addressed at it. Fourthly, there is a delay between the matters alleged, and their being addressed. Whilst the respondent has sought to explain that from annual leave and illness, it does not necessarily answer all of that issue.[25]Fifthly, he denies the allegation of crude language, and those who make it were not able to provide a date when it occurred, such that that evidence is less than complete. Sixthly, he says that the iPad from which an email was sent to his own account was one to which all staff had access, and that the information in the email which was effectively copied on could not be regarded as confidential when it was not protected by the respondent. Seventhly, he contrasts the investigation of him with that of Mr Tortolano, and raises issues around the investigation such as the one question asked of his manager in the investigation, when she could have given answers on a wide range of issues, and the four meetings held with him against a short one with Mr Tortolano.[26]Finally, he argues that the respondent deliberately separated out the disciplinary process from the disclosures, did not allow him to raise the points from the disclosures as mitigation, did not investigate his disclosures or respond to them adequately, and acted to dismiss him before the conclusion on the disclosures and his grievance. What the respondent did, after dismissing him, was write to him to reject all his allegations, which he disputes stating that he has documentary and video evidence to prove them. There are many other points of detail, and arguments made around them, but that summarises the main points I consider that the claimant made.[27]Looking at the position from the respondent’s perspective, allegations were made of what may be described as inappropriate behaviour by the claimant with abusive and threatening comments, inappropriate comments with a sexual element, inappropriate accessing of information, and sending an email to himself. If those allegations are true, they may well amount to gross misconduct. The claimant challenges them, however. He did admit to calling a colleague a “bald fucking loser”, as noted in the dismissal letter. He denies that that is discriminatory, but there is authority to the contrary.[28]The dismissal letter states that there are witness statements about aggressive behaviour which contradicted his account that customers did not leave as a result. That is indeed what the statements state, on their face. There does appear to have been an altercation between the claimant and Mr Tortolano, and the claimant does appear to have reacted, even if it is accepted that Mr Tortolano was the initiator of it, and used inappropriate language himself. Had that been the only matter alleged against the claimant, the claimant’s position would most certainly have been stronger. But there are two other allegations.[29]The dismissal letter did not accept the claimant’s denial of the comment with regard to the brownie which at the least was highly inappropriate if made, and did not consider that to have been fabricated by the witnesses to it as the claimant alleged. There are two witness statements which support that, at least on their face. They are from colleagues of the claimant rather than from management. It is not easy to see on what basis they would be fabricated, save from their being part of a conspiracy against the claimant. It is not impossible that there is a form of conspiracy, and the claimant argued that they were friends with management, but conspiracy involving those persons is not the most natural and obvious conclusion to reach, from the material before me. There are other aspects to this which are relevant as I address below, but the central allegation of conspiracy is not a simple matter to establish, and in this regard it is relevant to note that the onus of proof falls on the claimant.[30]There was also reference to a form of data breach, with an email sent to the claimant’s email account from a laptop used in the store which was password protected. The claimant denied doing so, saying that it must have been a mistake. It is not easy to see why someone else by mistake would have sent an email to the claimant’s personal email account. It is not impossible, but not the most natural and obvious conclusion to reach, and if an email is sent to a private email account with what on the face of it is not intended for wider publication that could amount to gross misconduct. Why someone other than the claimant would send such a message to the claimant’s email account is not clear. Who did so was not made clear, and the claimant may well of course not know that, assuming that his version of events is right.[31]Again, therefore whilst the claimant’s position might be supported after evidence is heard, it is not a straightforward argument for him because of the written record of an email sent to his account, which on the face of the material before the disciplinary manager, and before me, is supported by a witness stating that the claimant was seen using the iPad at the time, and in the context of there having been issues raised by him over the level of staffing and related matters.[32]Timing is one factor to consider, with these issues having arisen after the claimant made a series of what he claims to be protected disclosures, but it is a well-established principle that just because something happens after an event it does not follow that it happened because of it (post hoc non ergo propter hoc, is the Latin maxim).[33]On the face of the written witness statements provided during the investigation and the terms of the investigation report itself there was in my view at least some material before the decision maker which was a basis on which someone in that position could have reached the decision that was reached. There is a basis for the finding of gross misconduct, unless there was some form of wider conspiracy to dismiss the claimant as he alleges for the making of disclosures.[34]It is far from beyond argument that the decision-maker was either part of such a large conspiracy, or was manipulated into the decision unwittingly, similar to that in Jhuti. I require to balance the arguments for the claimant against those of the respondent and consider whether the former are sufficient to meet the statutory test for granting interim relief, which is essentially whether the claimant has a pretty good chance, greater than one of probability, of succeeding. This is a case in which there are very likely to be many factual issues in dispute, which is so dependent on the evidence that is led by the parties and particularly on how the Tribunal assesses the evidence of the decision maker on dismissal, that at this stage I do not consider that I can say that the claimant has that pretty good chance of success.[35]The key considerations that led me to conclude that the statutory test is not met are firstly, the disciplinary investigation which was undertaken, which included some material from the claimant amounting to an admission in part, and other aspects that were disbelieved, secondly, that there was more than one witness statement implicating the claimant, such that his position is that those who gave witness statements were all lying, involving a reasonably large number of employees of varying levels of seniority, which is not on the basis of my experience particularly likely although it could be, thirdly, that whilst there was a degree of a lack of specification in some of those statements particularly as to when the crude remark matter occurred, and they were taken fairly long after the event there was at least a degree of corroboration of the remark within them, fourthly, that there was an email apparently sent to the claimant’s email account, which is not on the face of it something likely to have been done in error and finally that on the face of it the decision maker took a decision on the evidence that there was available, and did so quite long in time after the first of the alleged disclosures was made, which is I consider more consistent with a finding from the material than there being a conspiracy from the making of disclosures which in my experience is more likely to be acted on quickly if at all, and finally, that establishing the kind of conspiracy the claimant alleges is not evidentially straightforward.[36]As I was finalising this judgment, after having made my decision, the claimant’s email seeking to make an additional submission after the hearing had concluded was passed to me. I have considered it, but do not consider that it affects the outcome. The issue of timing I have addressed above. The second issue that the claimant alleges is that his accessing emails was itself a disclosure, to paraphrase. The basis for this aspect of the dismissal, as I understand it to be from the dismissal letter, was an email that the claimant was alleged to have sent, which contained a message said to be confidential. That original email, including the terms contained within it, is a different issue to whether the disclosure, which is something that the claimant does, was made, and was protected in law.[37]I have to add however that the claimant put forward strong arguments as to why his case was likely to succeed, which he clearly believes in passionately, and I did consider all that he said and put before me in documentary form with care. I came quite close to granting the interim relief he sought. The manner of his treatment as against that of Mr Tortolano appears both striking and surprising, even with the qualification of the other allegations. The disciplinary hearing was held notwithstanding his grievance, and doing so does not appear consistent with the ACAS Code of Practice. Unfairness is not the test, but taking matters in that order is not what normally might be expected. The grievance investigation does not appear to be as full as one might normally expect, and was commenced quite long after the disclosures commenced, if they are held to be protected disclosures. That is far from an exhaustive list of the matters that a final hearing may deal with.[38]These and other factors are matters that can be explored fully when evidence is heard. Whilst a finding for the claimant requires a finding in effect of a conspiracy of some kind against him, with fabrication of evidence as he alleges, conspiracy does on occasion happen, as the Jhuti case exemplifies. A final hearing can consider all of the evidence, and hear from a number of witnesses, on the issues in dispute.[39]For the avoidance of doubt the decision should not therefore be taken as indicating that the claim under section 103A is likely to fail. It may or may not succeed after the Tribunal has heard all of the evidence at a final hearing, at this stage one cannot know. On the basis of the pleadings and material before me there is certainly an issue to try. Nothing that I have said is intended in any way to affect that final determination of the claim. All that I have determined is that the claimant does not meet the reasonably high threshold for granting interim relief from the material I had before me. Conclusion[40]The application for interim relief was accordingly refused. For clarity, I have framed this decision as a judgment in light of the decision of the EAT in Queensgate Investments LLP and others v Millet UKEAT/0256/20/RN which held that interim relief was a substantive claim. This decision determines that claim, and falls within the definition of judgment in Rule 2 of the Employment Tribunal Procedure Rules 2024.
REASONS
[1]A Judgment in this case was issued to the parties on 21 July 2025 (“the Judgment”).[2]The claimant applied for reconsideration of the Judgment by email also dated 21 July 2025. He provided supplementary arguments by email. Both parties provided Bundles of documents for use at the hearing into the reconsideration application held remotely at the claimant’s request on 17 September 2025. The delay was caused my being involved in another case and then on annual leave. E.T. Z4 (WR)[3]The claimant argued that there was new evidence that tipped the balance in his favour, in very brief summary of his submission. It was focused on WhatsApp messages he stated he had exchanged with a former colleague named Jason, in which it is suggested that Jason had not made an allegation against the claimant, again in very brief summary. The claimant explained that he had considered that he had sufficient evidence to succeed in the original interim relief application and had not thought to contact his former colleague about the case until the decision was issued. He further tendered an audio recording of a conversation with another colleague named Lauren who he had met on Union Street in Aberdeen when out with his wife. I listened to that recording. The claimant asked her about whether a complaint had been made, and she said that she had been instructed by the respondent not to speak to him, and made it clear that she did not wish to speak to him, in brief summary. He considered that that supported his arguments.[4]The respondent had provided in their Bundle a letter to Mr Tortolano which set out a final written warning, and the claimant argued eloquently that that showed that the way the claimant had been treated was different to the treatment of Mr Tortolano: that included that allegations he had made were not pursued, but allegations Mr Tortolano had made were, that his own mitigation was ignored in part, and that the comments Mr Tortolano made were far worse than those alleged of him. He argued that there was a clear disparity in treatment between him and Mr Tortolano, and that the reason for that was his protected disclosures.[5]Further aspects of the claimant’s submission are set out below and included commentary about the contract terms and the email sent to his email account which he denied was by him but which he argued was a protected disclosure. All that he said was considered, but not all recorded in this Judgment.[6]The respondent had provided a written submission which was spoken to and supplemented orally.
The Law
[7]The Employment Tribunal Procedure Rules 2024 have provisions in relation to reconsideration of judgments at Rules 68 – 70, formerly Rules 70 – 73 in Schedule 1 to the 2013 Regulations, and although there are some differences in wording they are not material for the present application such that earlier case law remains relevant.[8]The Rules I consider relevant for the present application are as follows: “Principles 68.—(1) The Tribunal may, either on its own initiative (which may reflect a request from the Employment Appeal Tribunal) or on the application of a party, reconsider any judgment where it is necessary in the interests of justice to do so. (2) A judgment under reconsideration may be confirmed, varied or revoked. (3) If the judgment under reconsideration is revoked the Tribunal may take the decision again. In doing so, the Tribunal is not required to come to the same conclusion. Application for reconsideration 69. Except where it is made in the course of a hearing, an application for reconsideration must be made in writing setting out why reconsideration is necessary and must be sent to the Tribunal within 14 days of the later of—(a) the date on which the written record of the judgment sought to be reconsidered was sent to the parties, or(b) the date that the written reasons were sent, if these were sent separately. Process for reconsideration 70.—(1) The Tribunal must consider any application made under rule 69 (application for reconsideration). (2) If the Tribunal considers that there is no reasonable prospect of the judgment being varied or revoked (including, unless there are special reasons, where substantially the same application has already been made and refused), the application must be refused and the Tribunal must inform the parties of the refusal. (3) If the application has not been refused under paragraph (2), the Tribunal must send a notice to the parties specifying the period by which any written representations in respect of the application must be received by the Tribunal, and seeking the views of the parties on whether the application can be determined without a hearing. The notice may also set out the Tribunal’s provisional views on the application. (4) If the application has not been refused under paragraph (2), the judgment must be reconsidered at a hearing unless the Tribunal considers, having regard to any written representations provided under paragraph (3), that a hearing is not necessary in the interests of justice. (5) If the Tribunal determines the application without a hearing the parties must be given a reasonable opportunity to make further written representations in respect of the application.”[9]The terms of these Rules are subject to the overriding objective in Rule 3. It states as follows: “Overiding objective 3.—(1) The overriding objective of these Rules is to enable the Tribunal to deal with cases fairly and justly. (2) Dealing with a case fairly and justly includes, so far as practicable—(a) ensuring that the parties are on an equal footing,(b) dealing with cases in ways which are proportionate to the complexity and importance of the issues,(c) avoiding unnecessary formality and seeking flexibility in the proceedings,(d) avoiding delay, so far as compatible with proper consideration of the issues, and(e) saving expense. (3) The Tribunal must seek to give effect to the overriding objective when it— (a) exercises any power under these Rules, or (b) interprets any rule or practice direction. (4) The parties and their representatives must— (a) assist the Tribunal to further the overriding objective, and (b) co-operate generally with each other and with the Tribunal.”[10]In Serco Ltd v Wells [2016] ICR 768, the EAT observed that the Rules of Procedure must be taken to have been drafted in accordance with the principles of finality, certainty and the integrity of judicial orders and decisions.[11]In Liddington v 2Gether NHS Trust EAT/0002/16 the extent to which reconsideration was appropriate was addressed by the EAT in the following terms: “a request for reconsideration is not an opportunity for a party to seek to re-litigate matters that have already been litigated, or to reargue matters in a different way or adopting points previously omitted. There is an underlying public policy principle in all judicial proceedings that there should be finality in litigation, and reconsideration applications are a limited exception to that rule. They are not a means by which to have a second bite at the cherry, nor are they intended to provide parties with the opportunity of a rehearing at which the same evidence and the same arguments can be rehearsed but with different emphasis or additional evidence that was previously available being tendered.”[12]In Trimble v Supertravel Ltd [1982] ICR 440 the EAT held that the reconsideration procedure is there so that where there has been an oversight or 'some procedural occurrence' such that a party can be said not to have had a fair opportunity to present their argument on a point of substance, they can bring the matter back before the tribunal for adjudication.[13]In Shaw v Intellectual Property Office UKEAT/0186/20 the EAT described the first stage in what is now Rule 70 as a ‘sift’ stage of the reconsideration application, akin to the sift process which is applied to appeals to the EAT. The test is in Rule 70 itself and is whether the Judge considers that there is no reasonable prospect of the original decision being varied or revoked. If so the application may be refused if that is in accordance with the overriding objective.[14]I have not found authority on where in a reconsideration application for an interim relief judgment a party seeks to found on new evidence. There is however authority in the circumstances of a Final Hearing. The position in England is based on the decision in Ladd v Marshall [1954] 3 All ER 745, determining the admissibility of fresh evidence in civil proceedings and decided in the Court of Appeal, which has been followed in Employment Tribunal cases for example in Wileman v Minilec Engineering Ltd [1988] IRLR 144. Following the implementation of the 2013 Rules, the EAT held that the Ladd v Marshall test (in conjunction with the overriding objective) continued to apply where it is sought to persuade a tribunal, in the interests of justice, to reconsider its judgment on the basis of new evidence in the case of Outasight VB Ltd v Brown UKEAT/0253/14).[15]The Ladd v Marshall test has three parts. It must be shown:(a) that the evidence could not have been obtained with reasonable diligence for use at the original hearing;(b) that it is relevant and would probably have had an important influence on the hearing; and(c) that it is apparently credible.[16]The principle that applies in Scotland in the civil courts is not identical, although some aspects are similar. The principle is res noviter veniens ad notitiam, usually referred to as the res noviter rule. MacPhail on Sheriff Court Practice states the following: “The court may also receive a minute of res noviter and allow additional evidence to be heard in very exceptional circumstances: see Coul v Ayr CC, 1909 S.C. 422; Mitchell v Sellar, 1915 S.C. 360 at 361”[17]In the latter of those two cases the Lord President said this: “This is one of a class of cases in which the Court has certainly a very wide discretion—at the same time, a discretion which is only exercised under very exceptional circumstances.”[18]The res noviter principle was referred to in Ramsden v Santon Highlands Ltd [2015] CSOH 65, in the Outer House of the Court of Session as follows: “Res noviter must refer to some fact which was not known and which could not, with reasonable care and diligence, have been known before. The pursuer requires to aver circumstances showing that he was excusably ignorant of how matters stood. He must give particulars of its discovery and of the circumstances which bear upon the possibility of his having acquired earlier knowledge of it.”[19]The issue of new evidence was also addressed by the Inner House in Choudhury v General Medical Council [2023] CSIH 13, in which the following summary was given: “(a) It was for the party seeking to introduce the fresh evidence to satisfy the court that there is an acceptable explanation for the evidence not having been available at the time of the original proceedings; (b) that party must satisfy the court that the fresh evidence would have been relevant and admissible before the original Tribunal; and (c) the court must be satisfied that there is a reasonable prospect that the fresh evidence would have made a material difference to the Tribunal’s decision. Even where relevant evidence was not available at the proof and its non-availability was not due to a failure to investigate the case properly, the court will not necessarily allow additional proof: the overall consideration is the interests of justice, in respect of which finality is an important element. Particular difficulties may arise where it is sought to lead additional evidence in order to persuade the court to alter findings in fact which were based upon the Lord Ordinary’s assessment of credibility or reliability. The court will normally be slow to reopen the evidence…..”[20]The President of the Employment Appeal Tribunal applied the Ladd v Marshall test in an appeal from a decision in Scotland in Gourlay v West Dunbartonshire Council [2025] EAT 29 such that it appears to me that I am bound by that and therefore apply that test. The test in the res noviter principle is similar but in my view is slightly higher. If the claimant does not meet the Ladd v Marshall test any point as to res noviter becomes academic.[21]It appears to me that a similar principle operates in the context of an interim relief judgment – the same principles of finality of litigation arise, with that principle applying to all judicial decisions as noted above, not only those after Final Hearings and a form of exceptional circumstance is required to allow a matter to be raised that could with reasonable diligence have been obtained prior to the original hearing.[22]If the new evidence is to be considered it requires to have a material impact on the decision, and then if that hurdle is surmounted the assessment of whether or not to grant interim relief, the law as to which was set out in the Judgment, requires to be applied.[23]The law applicable to the interim relief Judgment was set out in the Judgment. Discussion[24]It is relevant to stress that at the interim relief hearing no evidence was heard and no findings in fact were made. The process was a summary assessment on the basis of documentation provided and submissions made.[25]The present application requires consideration firstly in the context of the new evidence the claimant seeks to put forward. That raises the issue of whether it is in accordance with the overriding objective to allow it to be raised at this stage, having regard to the authorities referred to above. In my view it is not. That is because with reasonable diligence the claimant could have raised the matter with his former colleague prior to the interim relief hearing and tendered an answer then. Whilst the respondent gave an instruction not to speak to colleagues, which they were entitled to do as the employer, that ceased to be effective at the point of dismissal. At that point onwards the claimant was able to send a WhatsApp message to his colleague. He did not do so prior to the interim relief hearing. Although he is a party litigant, it appears to me such an obvious step to take that whether someone is represented or not one would expect it. It is the kind of step that reasonable diligence requires, and the view the claimant took of his prospects of success is in my view not a sufficient answer to that point.[26]The other aspects of his argument are largely repeating the same points made at the interim relief hearing, or doing so with additional points that he could with reasonable diligence have been in a position to make at that stage (for example in relation to the contract). Much of the argument is the kind of rearguing of points in a different way that Liddington states is not permissible.[27]Against that background I do not consider that the reconsideration application succeeds. I did however secondly consider matters in the alternative, in the event that it was appropriate to take it into consideration the new material provided by the claimant. There are then further issues that arise. The first is the dispute the respondent raises over its provenance. It has the transcript of a call with the employee Jason which suggests that the claimant has not been in contact with him since termination. The claimant argues that the message was to the account of that employee, and refers to a comment made by Jason about not wishing to be involved because of his need for the job. But that dispute over the provenance of the documentation, and whether or not a complaint was made by Jason or not, is not one that I am able to determine on the material before me, and without evidence. There are arguments both ways, and it requires evidence (which I assume is to be given by Jason as a witness either for the respondent or if not called by them should the claimant wish to seek a witness order).[28]The second issue is the conversation with his other former colleague Lauren which the claimant recorded. In my view it adds nothing to his case. The colleague does not comment on the material allegation, being that he had used lewd language which she did not wish, stating that she has been instructed not to speak to the claimant. That is not evidence of suppression of the claim or evidence related to it in my view. Whilst the claimant argued that the language, if used, was not unwanted, that is not agreed by the respondent. It argues that there was a difference between what Lauren may have said, and what the claimant is alleged to have said, and that if what the claimant is alleged to have said is established in evidence that can be unwanted conduct under section 26. This again is a dispute of fact, and I am not in a position to form a view on that from documents or the recording.[29]The third issue is that related to Mr Tortolano. There is now evidence submitted by the respondent which it could have provided at the interim relief hearing but did not. The lack of disciplinary procedure against Mr Tortolano was a material factor in the comments in the Judgment as to the claimant coming close to meeting the test.[30]It appears to me that if the claimant’s new evidence is to be considered, this evidence submitted by the respondent also requires consideration. The respondent required to address the interim relief hearing at short notice, and states that it is now aware of further matters from a fuller investigation. It seems to me that if the claimant’s new evidence can be said to meet the test for admitting it, that for the respondent is at the very least no less worthy of consideration given the circumstances.[31]It is not entirely straightforward as an issue however. Whilst there was a final written warning issued, not no disciplinary matters as the position had appeared at the interim relief hearing, many of the observations of the claimant about how his case had been handled as against that of Mr Tortolano have, at least on the face of them, merit. There is the possibility that he will establish a disparity of treatment between them, although whether that is sufficient to reverse the onus of proof, or lead to a conclusion that the sole or principal reason for dismissal was one or more protected disclosures is a different question that at this stage I do not consider can easily be answered. The context is that disciplinary action was taken against Mr Tortolano at the level of a final written warning, his far longer service than the claimant having been taken into account, and he did not have the two other issues alleged against him of inappropriate comments, and of allegedly sending a confidential email.[32]As to that confidential email, the claimant firstly denies that he did send it to his email account, but accepts that it was received at his own email account. That is not as a matter that is easily understandable. Why someone else would send that email to his private account, who did so, and how, will require evidence. Secondly he argues that it was then the subject of a protected disclosure he made, and thus from the terms of the contract of employment is not a breach of contract. It is a somewhat circular argument, and assumes that sending an email to his email account outside the respondent is a protected disclosure, but in my view that is not likely to be right. The email to the claimant’s account is not I consider likely to be held to be a protected disclosure, it is the email he later sent on 2 July 2025 that might be. The claimant can argue that the sending of the email to his own email account is part of that process, but there are I consider difficulties with that argument, whether it is established that someone else did so, or that he did so. It seems to me that this point also is one that requires evidence to establish whether or not the claimant did send it, he denying that. It appears to me that this and some of the other issues identified above are more complex than the claimant argued for, and perhaps appreciates.[33]Looking at all the material before me in the light of the new circumstances that are before me in the event that the new material is to be considered, the matrix is somewhat different to that at the interim relief hearing. I remain of the view that the claimant does not meet the threshold for the award of interim relief. His case is, similarly to that at the interim relief hearing itself but for somewhat different reasons given the changed circumstances, quite close to doing so, but there are a number of factual matters in dispute which I do not consider means that I am able to conclude that the test for granting interim relief is met.[34]In all the circumstances in my view it is not in accordance with the overriding objective to grant the reconsideration application for these reasons, and it is refused.