Ms M DM Val v University of Edinburgh and Others: 8001688/2024 and 8001081/2025

EMPLOYMENT TRIBUNALS (SCOTLAND)

Case No 8001688/2024, 8001081/2025

Between

Ms. Maria DM ValClaimant

University of Edinburgh and OthersRespondent

Before

Employment Judge R McPherson

Mr C Boyle (instructed by Solicitor) for respondent

Ms E Davidson for respondent

Trainee Solicitor for respondent

Mr AD Shanks for respondent

Mr RJ Busang for respondent

Ms L Thomson for respondent

Date 29 August 2025

JUDGMENT

[1]the claimant’s Application for Interim Relief is refused; and

[2]the respondent’s expenses application is refused.

REASONS

[1]The claimant presented her claim to the Employment Tribunal on 2 May 2025, following ACAS Early Conciliation which commenced, in relation to the first respondent on 1 May 2025 followed by issue of certificate on 2 May 2025, although ACAS early conciliation is not required for current purposes as this is an Interim Relief

Hearing.

[2]The claimant identifies that she has a separate claim to the Tribunal against the respondents 8001688/2024 (the 2024 claim) that was presented on October 2024. That claim is ongoing, and so far, as relevant to this claim Order was sent to the parties on 20 January 2025 requiring that the claimant provide specification in relation to each protected act/disclosure relied upon and other matters on or before 13 March 2025 (paragraph 3 of the Order) and by order sent to parties on 6 May 2025 provide further specification of the basis of the 2024 claim.

[3]In advance of this hearing, the respondent set out their opposition in written Submissions to the claimant and Tribunal in an email at 9.12 pm on 21 May 2025, list five bullets points of separate documents being; a Bundle of Documents and Index; a Bundle of Authorities and Index, Respondent Submissions, a Respondents Chronology; and as final bullet point; Witness statements for Allan Shanks, Ashely Simon, Simon Cummings and George Lyon.

[4]At the outset of this hearing, there was some discussion as to whether, as intended by the claimant, there were seven respondents, including former colleague Lee Ann Goodbrand and Stacey Boyle; the respondent representative intimated that there is an outstanding application to amend the 2024 claim to add these two further respondents. By clarification, the Tribunal has accepted the claim against all seven listed respondents (Ms Goodbrand and Ms Boyle were identified at page 7 of the ET1 with respective ACAS Reference Numbers) and are listed above.

[5]The claimant confirmed that although she bring the application she is unfamiliar with Interim Relief itself and accepted that the Interim Relief application is against the first respondent only - the Tribunal cannot compel fellow employees to employ someone who was not their employee.

[6]The claimant set out her position in relation to Interim Relief at page 16 of the paper apart to her ET1 at paragraph 26 describing that she is “claiming unfair dismissal by reason of whistleblowing and I am applying for interim relief pursuant to s128” ERA 1996 “for the reasons set out in the Details of Claim, I submit that it is likely that the Tribunal, will in determining this complaint under s103A ERA, find that the (principal) reason for the decision to dismiss me, pleaded as detriment contrary to s47B “(ERA 1996) “alongside victimisation contrary to S27” (EA 2010) “and on which I am relying as against (the named additional respondents) personally . Accordingly, unless the Respondents confirm that they are willing to reinstate me. I am entitled to an order for the continuation of my contract of employment pursuant to s129(9)” ERA 1996.

[7]While the claimant references victimisation s27 EA 2010 in her ET1, the claim of victimisation in terms of s27 EA2010 is note matter for this Interim Relief

Hearing.

[8]The issues which the Tribunal is required to determine werea. Whether Interim Relief should be granted to the claimant, in terms of sections 128 and 129 of ERA 1996, pending a final determination of her complaint, directed against the respondent, that she was automatically unfairly dismissed in terms of section 103A of ERA 1996, that is for the principal reason that the claimant had made a protected disclosure, and

b. If Interim Relief is to be granted, should the Tribunal Order that the claimant be reinstated on particular terms, and/or make an Order to continue the claimant’s Contract of Employment?

[9]The claimant and the respondent’s representative's respective written submissions were mutually exchanged at the outset, as set out above, the respondent had emailed documents the previous evening, and the claimant had responded confirming that she would provide her documents in hard copy at the hearing. The respondent also provided hard copies for the hearing. For the sake of brevity, they are not reiterated here.

[10]The claimant’s written submission, headed skeleton argument, extended to 15 pages with primary headings of Relevant Law, Authorities, Essential Elements of s103 ERA 1996 and Claimant’s Position, was the first document in the claimant bundle, the second being a witness statement for the claimant dated 17 May 2025 and extending to 36 pages along with other evidential documents in the claimant bundle over 646 pages.

[11]The respondent provided a proposed Chronology covering 23 March 2020 to 1 May 2025, the claimant having reviewed same confirmed that she did not accept the content. As this is a non-evidential hearing the Tribunal does not propose to make findings on basis of that Chronology. The respondent although provided an Authorities bundle, a Bundle for the Hearing, witness statements, and written submissions headed Note of Submissions in Relation to the Hearing of the Claimant’s Application for Interim Relief which extends 59 paragraphs over 17 pages.

[12]At the outset, the Tribunal adjourned for an agreed 30 minutes to allow the claimant and respondent to read each other’s submissions and address matters arising thereafter.

[13]As the claimant was unrepresented the Tribunal took the claimant to the terms of her ET1. The Tribunal explained that while witness statements including for the respondents had been provided, this was a non-evidential hearing as the Tribunal must seek to avoid making disputed findings in fact which have the effect of binding or restricting the scope of inquiry which is to be undertaken at a full evidential Merits Hearing and in any event there would no practical opportunity to cross examine all the potential witnesses who may be relevant at a final hearing.

[14]The claimant asserts that she was employed by the first respondent, the University of Edinburgh, as a Contracts Manager at their Edinburgh Research office from 23 March 2020 to 1 May 2025. It is understood that this is not disputed.

[15]The claimant asserts that, as yet, she has not received the pay in lieu of notice following the termination of her employment on reasonable inquiry (as provided for in terms of Rule Expenses), the claimant advises that she has no other income. While the respondent in their submission at paragraph 59 describes that the claimant has been paid her contractual 3 months' notice, this was clarified to indicate that the respondent intends to make payment at the end of this calendar month.

[16]While the Tribunal concluded that it was not necessary to reserve judgment on both Interim Relief and Expenses Application at the conclusion of the Hearing and oral judgment was given, the Tribunal intimated that it considered in all the circumstances it was appropriate to set out fully matters in this written judgment. Interim Relief & Pleadings/Fair Notice Relevant Law

[19]Section 128 of the Employment Rights Act 1996 (ERA 1996) provides employees with the right to claim interim relief in certain circumstances, including where they assert that their dismissal was automatically unfair, as the reason, or principal reason, for their dismissal was that they had made protected disclosures.

[20]In order to succeed in an application for interim relief, the claimant must show that it is 7/ke/y'that the complaint of unfair dismissal will succeed (s129 ERA 1996 ).

[21]An Interim Relief application may be heard by an Employment Tribunal Judge sitting alone (s4(2)(a) and (c) Employment Tribunals Act 1996) and is heard in public. The application will be heard at an Open Preliminary Hearing under rules 52-54 of the 2024 ET Rules. There is no requirement for the respondent to expedite an ET3 Response Form. The ET3 in this instance is due by 5 June 2025.

[22]The test for the Employment Tribunal to apply is whether it appears to the Tribunal that it is likely, on determining the complaint to which the application relates, that it will find that the complainant has been unfairly dismissed for the asserted qualifying reason. The burden of proof is on the claimant.

[24]A leading authority remains Taplin v Shippam Limited

[1978] ICR 1068

, EAT Taplin (which is referred to by the respondent at paragraph 13 of their written submission) where the Employment Appeal Tribunal further defined “likely” as meaning “a pretty good chance of success”.

[25]The test is that the claimant has “a pretty good chance of success” in establishing that the reason he/she was dismissed was that he had made a protected disclosure.

[26]In Taplin the EAT expressly ruled out alternative tests. According to the EAT the burden of proof in an Interim Relief Application was intended to be greater than at a full Hearing, where the Tribunal need only be satisfied on the “balance of probabilities" that the claimant had made out his case. The threshold for succeeding in an Interim Relief Application is accordingly a high threshold for an “an exceptional form of relief” (see Taplin at paragraph 19).

[27]In Dandpat v University of Bath [2009]

UKEAT/0408/09

[Dandpat] Underhill J set out at paragraph 17: An application for interim relief is, as we have said, necessarily summary in character. It was in our view enough for the Tribunal to indicate the essential gist of its reasoning.”, and at paragraph 20 we do in fact see good reasons of policy for setting the test comparatively high, in the way in which this Tribunal did, in the case of applications for interim relief. If relief is granted the respondent is irretrievably prejudiced because he is obliged to treat the contract as continuing, and pay the claimant, until the conclusion of the proceedings: that is not [a] consequence that should be imposed likely”.

[28]The approach to be followed by a Tribunal was described in Raja v Secretary of State for Justice [2010]

UKEAT/0364/09

/ CEA (Raja) paragraph 25: “What a Tribunal has to do in an application for interim relief is to examine the material put before it, listen to submissions and decide whether at the final hearing on the merits “that it is likely that” that Tribunal will find that the reason or reasons for the dismissal is one or more of those listed in section 129(1).”

[29]In Ministry of Justice v Sarfraz

[2011] IRLR 562

, EAT [Sarfraz] Mr Justice Underhill, then President of the EAT, commented that the test of a “pretty good chance of success” does not mean simply “more likely than not” but connotes a significantly higher degree of likelihood, i.e. “something nearer to certainty than mere probability”. “

[30]In London City Airport v Chacko

[2013] IRLR 610

[Chacko] at paragraph 23, the EAT set out “The application falls to be considered on a summary basis. The Employment Judge must do the best he can with such” [relevant] “material as the parties are able to deploy by way of documents and argument in support of their respective cases . . . what this requires is an expeditious summary assessment by the first instance Employment Judge as to how the matters look 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 a full Hearing of the claim.” and at paragraph

[39]“Parliament has entrusted an assessment to the employment judge on the front line. The statutory rubric requires the judge to assess how the matter ‘appears’ to him or her.”31. In Parsons v Airplus International Ltd [2016]

UKEAT/0023/16

/ [Parsons], the EAT offered the following guidance as to approach: - “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; because, as far as possible, it is better not to say anything which might prejudge the final determination on the merits.”

32. In His Highness Sheikh Khalid Bin Saqr Al Qasimi v Robinson [2017]

UKEAT/0283/17/JOJ

[Al Qasimi] Her Honour Judge Eady QC at paragraph 59 set out: “I start by reminding myself of the exercise that the ET had to undertake on this application. 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.”

33. The EAT in Wollenberg v Global Gaming Ventures (Leeds) Limited, [2018]

EAT/0052/18

[Wollenberg] (to which the respondent refers to in paragraph 13 of the respondent written submission), set out at para 42 “I would however urge the parties carefully to consider preparation for any remitted hearing. Such hearings are intended to be short. They are, as the cases make plain, intended to be broad assessments by an Employment Judge who cannot be expected to grapple with vast quantities of material. . . . It is only a preliminary view taken by an Employment Judge in a case which will have to be in due course the subject the detailed investigation.”

34. Such Hearings are intended to be short with broad assessments made by the Employment Judge who is not expected to grapple with large quantities of material. The statutory rubric requires the judge to assess how the matter ‘appears’ to him or her. The exercise carried out by the Employment Tribunal is necessarily somewhat cursory, given the short time scales dictated in s. 128 ERA 1996

35. The very nature of the exercise carried out by the Employment Tribunal is necessarily somewhat cursory, given the short time scales provided in s. 128 ERA 1996.

36. In terms of Rule 94 of the 2024 ET Rules, a Tribunal will not hear oral evidence at a Hearing on an Application for Interim Relief but will consider both parties positions, commonly by reference to written submissions supplemented by oral comments on the Interim Relief issues, in terms of section 128 of the ERA 1996 not the merits of the full claim. The general prohibition against the hearing of oral evidence which is contained in Rule 94 is for the long-established reason that the Tribunal at such an Interim Hearing must seek to avoid making findings in fact which have the effect of binding or restricting the scope of inquiry which is to be undertaken at a full evidential Merits Hearing and in any event there would no practical opportunity to cross examine all the potential witnesses who may be relevant at a final hearing.

37. The Tribunal noted that in Chandhok v Tirkey

[2015] ICR 527

(Chandhok) the EAT set out at paragraph 16 “The claim, as set out in ET1, is not something just to set the ball rolling, as an initial document necessary to comply with time limits but which is otherwise free to be augmented by whatever the parties choose to add or subtract merely on their say so. Instead, it serves not only a useful but a necessary function. It sets out the essential case. It is that to which a respondent is required to respond. A respondent is not required to answer a witness statement nor a document, but the claims made...”.

38. Unfair Dismissal: General 39. Relevant Law

[40]Section 94(1) of the Employment Rights Act 1996 (ERA 1996) provides “An employee has the right not to be unfairly dismissed by his employer.”

[41]Section 98 ERA 1996 states(1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show (a) the reason (or, if more than one, the principal reason) for the dismissal, and (b) that it is either a reason falling within subsection (2)_or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.

(2) A reason falls within this subsection if it— (a) relates to the capability or qualifications of the employee for performing work of the kind for which he is employed by the employer to do, (b) relates to conduct of the employee, (4) In any other case where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer)— (a) depends on whether in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and (b) shall be determined in accordance with equity and the substantial merits of the case.

[42]The claimant at page 8 of the paper apart to her ET1, describes at paragraph 21 that the respondent failed to follow the ACAS Code on ACAS Code on Discipline and Grievance. In accordance with the overriding objective (Rule 3 of the 2024 ET Rules of Procedure) and pending sight of the ET3, it is noted that in Phoenix House Ltd v Stockman

[2016] ICR 84

(Stockman), the EAT set out at paragraph 21 “The code does not in terms apply to dismissals for some other substantial reason.”

[43]The claimant at page 15 of the paper apart to the ET1, references, in paragraph 26, towards the foot of the unnumbered second paragraph, set out part of the sentence from paragraph 58 of the EAT decision in Ezsias v North Glamorgan NHS Trust [2011]

UKEAT/0399/09

[Ezsias] “on the lookout”. The Tribunal notes that full sentence of which paragraph reads “We have no reason to think that employment tribunals will not be on the lookout, in cases of this kind, to see whether an employer is using the rubric of “some other substantial reason” as a pretext to conceal the real reason for the employee's dismissal.”

[44]Unusually, in accordance with the overriding objective, it is considered helpful to provide a brief summary of Ezsias, in which the EAT held that an employee who had been dismissed because of the breakdown of his working relationships with colleagues, irrespective of whether he had been responsible for or had contributed towards that breakdown, had not been dismissed because of his conduct. Accordingly, it had been open to the Tribunal to find that disciplinary procedures relevant to allegations of misconduct did not have to be invoked in his case. 1. Mr Ezsias appealed against the Tribunal's finding that he had not been automatically unfairly dismissed by the Trust for making protected disclosures or unfairly dismissed. 2. Mr Ezsias was a consultant surgeon who, from the beginning of his employment, had expressed concerns about the competence of colleagues and management, and had written frequent letters on the subject. Nine senior members of staff signed a petition expressing concerns regarding Mr Ezsias’ conduct and how it was being dealt with. An investigation found that working relationships between Mr Ezsias and his colleagues had broken down irretrievably. Mr Ezsias was dismissed on the basis of that breakdown of trust and confidence. He brought proceedings arguing that the real reason for his dismissal was that he had made protected disclosures on 75 topics. The Tribunal examined some and found they did not amount to protected disclosures, but even if they did, the reason for his dismissal had been the breakdown of working relationships in the department, categorised as dismissal for a reason within the Employment Rights Act 1996 s.98(1)(b). Therefore, Mr Ezsias' claim that his dismissal was automatically unfair did not succeed, and the Tribunal went on to find that the reason for his dismissal had been fair. 3. Mr Ezsias submitted, among other things, that(1) in relation to automatic unfair dismissal, the Tribunal had failed to determine the reasons behind the petition and had failed to consider separately all of the 75 topics;

(2) in relation to ordinary unfair dismissal, he had been dismissed otherwise than in accordance with the disciplinary procedures which had been incorporated into his contract of employment. 4. The EAT dismissed the appeal noting regarding the petition, it was plain that the tribunal had found that it was the way Mr Ezsias had treated his colleagues, rather than any concerns on their part that he was disclosing things which they would have preferred to be kept secret, which was the cause of the breakdown of working relationships. Regarding the 75 topics, in the normal course of events, a Tribunal would have to address the topics which a claimant claimed to have complained about to decide whether they amounted to protected disclosures; it would then need to decide which of those topics the claimant actually complained about, whether they amounted to the disclosure of information, and if so whether the information came within any of the categories set out in s.43B(1). That was less appropriate where it was claimed that a large number of topics were the subject of complaints. However, even if Mr Ezsias reasonably believed that such information as he was disclosing tended to show one or more of the things set out in s.43B(1), the Tribunal's finding that that information was not disclosed in good faith made it unnecessary for it to consider each complaint separately. Nor did the tribunal have to make findings about each of the 75 complaints in order to decide why the relationships between Mr Ezsias and his colleagues had broken down (see paras 33, 37-38 of judgment). 5. The relevant question for the Tribunal had been whether the action taken by the Trust against Mr Ezsias should have been regarded as action taken against him because of his conduct. If so, the Tribunal would have had to consider whether that conduct should have been classified as personal or professional. If the latter, then it would have had to decide whether the failure to follow the correct disciplinary procedure had made Mr Ezsias' dismissal unfair. If the former, Mr Ezsias' dismissal would only have been capable of being unfair if the procedure in fact adopted by the Trust had not met the requirements of its own disciplinary procedure. However, if the Tribunal were to be regarded as having found that the reason for Mr Ezsias' dismissal was the fact of the breakdown of his relationships, and not his contribution to that breakdown, the conclusion it had reached was inevitable (paras 47, 56).

[45]The claimant at page 15 of the paper of the ET1, in the second unnumbered sub paragraph of paragraph of 26 provides an extract from Tubbenden Primary School Governors v Sylvester [2012]

UKEAT/0527/11

(Slyvester)

[46]Again unusually it considered appropriate in accordance with the overriding objective to provide a summary of Sylvester, in which it was held that where a dismissal had been for some other substantial reason and that reason was a breakdown of trust and confidence, the Tribunal was entitled to have regard to how that situation came about to determine the fairness of the dismissal. The governors of a school (the employer) appealed against a decision that they had unfairly dismissed Ms Sylvester, the deputy head.

[47]The headteacher in Sylvester, had instructed Ms Sylvester not to contact another teacher who was subject to serious allegations, but she refused. Ms Sylvester attended a meeting nine months later concerning the continuation of the friendship, and it was decided that no action would be taken. After a further seven months, she was asked to attend another meeting, at which she was suspended because of her continuing friendship with that other teacher. Disciplinary proceedings resulted in her dismissal as a result of the breakdown in trust and confidence between Ms Sylvester and the Head Teacher, which was a dismissal for some other substantial reason within the meaning of the Employment Rights Act 1996 s.98(1)(b). Ms Sylvester claimed unfair dismissal. The Tribunal held that, whilst the loss of trust and confidence was a potentially fair reason, Ms Sylvester's dismissal had been unfair because the Head Teacher had given his tacit consent at the first meeting to her friendship with that other teacher and had not thereafter warned her of the potential consequences of its continuing. For those two reasons, it also found Ms Sylvester's conduct had not contributed to her dismissal.

[48]The EAT allowed appeal in part:(1) Where, as in the instant case, the substantial reason relied upon was a consequence of conduct, there was such a clear analogy to a dismissal for conduct itself that it was entirely appropriate that a Tribunal should have regard to the immediate history leading up to the dismissal. The conclusion that there had been a loss of confidence did not mean that there was no need to examine all the circumstances of the case and the substantial merits of the case, as s.98 ERA would require. If, as a matter of principle, it were to be open to an employer to conclude that he had no confidence in an employee, and if a Tribunal were, as a matter of law, precluded from examining how that position came about, it would be open to that employer, if he could establish that the reason was genuine, to dismiss for any reason or none in much the same way as they could have done at common law before legislation in 1971 introduced the right not to be unfairly dismissed. The Tribunal had not been perverse in concluding that it was relevant to the fairness of the instant dismissal that Mr Sylvester had not only not been warned of the consequences of the continued relationship but had been entitled to think that her conduct had been condoned by the Head Teacher, or certainly not objected to. The Tribunal had been entitled to take those facts into account in determining the fairness of the case (see paras 37-39 of the judgment).

(2) The employer’s disciplinary code provided for automatic suspension where the alleged offence was gross misconduct. The only example of gross misconduct in the code that might be applicable in the instant case was wilfully ignoring responsibilities or refusing to carry out reasonable, lawful and safe instructions, thereby placing other members of staff or pupils in danger. It would be difficult, but not impossible, to classify Ms Sylvester’s case as gross misconduct. It was noted that the Head Teacher could have asked for somebody else to investigate, particularly as he had been extensively involved in the case, although it was recognised that the Head Teacher was customarily involved in initial investigations. Therefore, the Tribunal had been entitled to its view as a matter of objective observation. A Tribunal was required to pass judgment upon the overall fairness of a dismissal, which often involved expressing itself as to elements that had fed into the dismissal. There was no indication that it had substituted its own decision for that of the employer as opposed to commenting from its own perspective upon what the employer had done (paras 42-44).

(3) The Tribunal had not dealt with a second and distinct reason for arguing that there might have been some contributory conduct, namely that Ms Sylvester had made ill-founded aspersions on the Head Teacher’s good faith during the internal hearing, which made it difficult for her to continue to work as his deputy. The appeal on that ground would be allowed, the issue of contributory conduct would be remitted to the same Tribunal (paras 55-58).

[49]Relevant Law

[50]Protected Disclosures

[51]Section 47B of ERA 1996, so far as relevant, provides: “47B Protected disclosures. (1)A worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the worker has made a protected disclosure.”

[52]Section 43B ERA, provides: “43B Disclosures qualifying for protection. (1) In this Part a “qualifying disclosure” means 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 ...”

[53]The word “information” (or for that matter “disclosure”) is not defined in the ERA 1996. In Cavendish Munro Professional Risks Management Ltd v Geduld

[2010] IRLR 38

(Cavendish), the EAT set out, considering whether a solicitors letter which set out that health and safety requirements were not being complied with was an unprotected allegation (The EAT indicating in contrast that to say “wards of the hospitals have not been cleaned for two weeks and sharps were left lying around” would be conveying information) that for the legislation to have effect a disclosure must involve information, and not simply voice a concern or raise an allegation.

[54]Subsequently the Court of Appeal in Kilraine v London Borough of Wandsworth

[2018] IRLR 1850

(Kilraine) (which the respondent references at paragraph 21 of their written submission) approved the EAT decision in Kilraine v London Borough of Wandsworth

[2016] IRLR 422

in which it was noted the statute did not draw a distinction between information and allegation.

[55]The Court of Appeal went on to say in Kilraine at para 35 to 36: “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 which is capable of intending to show one of the matters listed in subsection (1) .... Whether an identified statement or disclosure in any particular case does or does not meet that standard, will be a matter for an evaluative judgment by the tribunal in the light of all of the facts of the case. It is a question that is likely to be closely aligned with the other requirements set out in section 43B (1) namely that the work in making the disclosure should have the reasonable belief that the information that he or she disclosures does tend to show one of the listed matters.” (emphasis added).

[56]At para 41- 42 the Court of Appeal set out:41. It is true that whether a particular disclosure satisfies the test in section 43B(1) should be assessed in the light of the particular context in which it is made. If, to adapt the example given in the Cavendish Munro case

[2010] ICR 325

, para 24, the worker brings his manager down to a particular ward in a hospital, gestures to sharps left lying around and says “You are not complying with health and safety requirements”, the statement would derive force from the context in which it was made and taken in combination with that context would constitute a qualifying disclosure. The oral statement then would plainly be made with reference to the factual matters being indicated by the worker at the time that it was made. If such a disclosure was to be relied upon for the purposes of a whistleblowing claim under the protected disclosures regime in Part IVA of the 1996 Act, the meaning of the statement to be derived from its context should be explained in the claim form and in the evidence of the claimant so that it is clear on what basis the worker alleges that he has a claim under that regime. The employer would then have a fair opportunity to dispute the context relied upon, or whether the oral statement could really be said to incorporate by reference any part of the factual background in this manner.

42. However, in the present case the claimant and her legal representatives did not identify any relevant context for the statement said to constitute the third disclosure which might inform or supplement its meaning; nor did they specify any part of that context which was said to supply the relevant minimum factual content which could satisfy the test in section 43B(1) . Even at the hearing before us, Mr Milsom did not do this with any particularity.

[57]In Blackbay Ventures Ltd t/a Chemistree v Gahir

[2014] IRLR 416

(Gahir) the EAT set out (at paragraph 98) guidance, indicating that the Tribunal should:(a) separately identify each disclosure by reference to date and content.

(b) identify the employer's alleged or likely failure to comply with a legal obligation and/or the matter giving rise to the endangering of an individual's health and safety;

(d) separately identify each failure;

(e) identify and verify the source of the obligation by reference to statute or regulation. It was not enough for the tribunal to lump together a number of complaints, some of which might not show breaches of legal obligations;

(f) determine whether the claimant had the necessary reasonable belief;

(g) where a detriment short of dismissal was alleged, identify the detriment and the date of the act or deliberate failure to act;

(h) determine, as appropriate, whether the claimant acted in good faith or whether the disclosure was made in the public interest

[58]In Eiger Securities LLP v Korshunova

[2017] IRLR 115

[Eiger] (to which the respondent refers at paragraph 22 of their written submission) the EAT set out that before finding that an employee had made a qualifying disclosure under ERA s.43B(1), a Tribunal requires to have identified the source of the legal obligation to which the employer was subject, and set out how it had been breached. The Tribunal was required to decide whether, in making the disclosure, the employee reasonably believed that it tended to show that her manager had failed to comply with a legal obligation. It was not obvious that failing to inform a client of the identity of the person they were dealing with was a breach of a legal obligation. Therefore, to fall within s.43B(1) ERA 1996, the Tribunal requires to identify the source of the legal obligation to which the employee believed her manager was subject, and how he had failed to comply with it, Gahir applied. The identification of the obligation did not have to detailed, but it had to be more than a belief that the actions were morally wrong. The Tribunal had failed to decide what legal obligation the employee believed to have been breached, and was therefore unable to determine the reasonableness of the employee's belief that a legal obligation had not been complied with. The decision that the employee made a qualifying disclosure was therefore set aside (paras 44-48).

[59]The public interest test was considered by the Court of Appeal in Chesterton Global Ltd (t/a Chesterton) v Nurmohamed

[2017] EWCA Civ 979 (Nurmohamed)

(which the respondent refers to at paragraph 24 of their written submission), which set out (para 27) that a Tribunal must determine:a. whether the worker believed at the time of making it, that the disclosure was in the public interest, and, 30

b. whether, if so that belief was reasonable.

[60]Further in relation to 1.b. the Tribunal is required to recognise that there might be more than one reasonable view as to whether a particular disclosure was in the public interest, and the Tribunal should not substitute its own view for another reasonable view. The necessary belief is simply that the disclosure is in public interest. While the worker must have a genuine (and reasonable) belief that the disclosure is in the public interest, that does not require to be the predominant motive in making it.

[61]The Court of Appeal in Nurmohamed, also identified that the test is not one of mere numerical analysis (as to how many its serves) but depends on the character of the interest served. All the circumstances of the case should be considered including: 1. the numbers whose interests are served by the disclosure, and 2. the nature of the interest affected and its importance, and 3. whether the matter complained of was deliberate; and 4. the identity of the alleged wrongdoer.

[62]Relevant Law (for IR hearing)

[63]Public Sector Equality Duty.

[64]The claimant refers to the Public Sector Equality Duty. From 6 April 2011 public authorities must have ‘due regard’ io the public sector equality duty set down by section 149 of the Equality Act 2010 (EA 2010).

[65]S 149(1) EA 2010 provides that, a public authority must, in the exercise of its functions, have due regard to the need to(a) eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under [the Equality Act 2010];

(b) advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it;

[66]S 149(3) EA 2010 having due regard to the need to advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it involves having due regard, in particular, to the need to(a) remove or minimise disadvantages suffered by persons who share a relevant protected characteristic that are connected to that characteristic;

(b) take steps to meet the needs of persons who share a relevant protected characteristic that are different from the needs of persons who do not share it;

(c) encourage persons who share a relevant protected characteristic to participate in public life or in any other activity in which participation by such persons is disproportionately low

[67]R. (on the application of Buckley) v Bath and North East Somerset Council

[2018] EWHC 1551 (Admin)

[R (On application of Buckley)] per Lewis J at para 36 “the duty is a duty to have due regard to the specified matters, not a duty to achieve a specific result. The duty is one of substance, not form, and the real issue is whether the relevant public authority has, in substance, had regard to the relevant matters, taking into account the nature of the decision and the public authority's reasoning. The absence of a reference to the public sector equality duty will not, of itself, necessarily mean that the decision-maker failed to have regard to the relevant matters although it is good practice to make reference to the duty, and evidentially useful in demonstrating discharge of the duty”:

[68]The Court of Appeal in R (Bridges) v Chief Constable of South Wales Police

[2020] 1 WLR 5037

R (Bridges) set out at [181]: “We acknowledge that what is required by the PSED is dependent on the context and does not require the impossible. It requires the taking of reasonable steps to make enquiries about what may not yet be known to a public authority about the potential impact of a proposed decision or policy on people with the relevant characteristics, in particular for present purposes race and sex.”

[69]Relevant Law (for IR hearing)

[70]Health and Safety

[71]Section 2(1) of the Health & Safety at Work Act 1974 provides that (1) It shall be the duty of every employer to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all his employees.

[72]Relevant Law

[73]Expenses Application

[74]Rule 73 of the 2024 Rules (while the Rules refer to costs - in Scotland they are referred to as Expenses) (1) A (expenses) order is an order that a party (“the paying party”) make a payment to- (a) another party (“the receiving party”) in respect of the costs that the receiving party has incurred while represented by a legal representative . . .

[75]Rule 74 of the 2024 Rules provides that(1) A Tribunal may make (an expenses) order or a preparation of time order (as appropriate) on its own initiative or on the application of a party

(2) The Tribunal must consider making a cost order or a preparation time order whether it considers that- (a) a party. . . has acted vexatiously, abusively, disruptively or otherwise unreasonably in either the bringing of proceedings, or part of it, or the way that proceedings (or part) have been conducted. (b) any claim, response or reply had no reasonable prospect of success, or (c) A hearing has been postponed or adjourned on the application of a party made less than 7 days before the date on which that hearing begins.

(3) A Tribunal may also make a (expenses,) order or a preparation of time order (as appropriate) on the application of a party where a party has been in breach of any order, rule or practice direction or where a hearing has been postponed on the application of party.

[76]Rule 75 of the 2024 Rules provides; “Procedure(1) A party may apply for a (expenses,) order or a preparation time order at any stage up to 28 days after the date on which the judgment finally determining the proceedings in respect of that party was sent to the parties.

(2) The Tribunal must not make a (expenses) order or a preparation time order against a party unless that party has had a reasonable opportunity to make representations (in writing or at a hearing, as the Tribunal may order).”

[77]Rule 76 of the 2024 Rules provides (1) A (expenses) order may order the paying party to pay (a) the receiving party a specified amount, not exceeding £20,000, in respect of the (expenses) of the receiving party; (b) the receiving party the whole or a specified part of the (expenses) of the receiving party, with the amount to be paid being determined (ii) n Scotland, by way of taxation carried out by the auditor of court... (3) A (expenses) order under sub-paragraph (b) ... of paragraph (1) may exceed £20,000

[78]Rule 82 of the 2024 Rules provides Ability to pay In deciding whether to make a (expenses) order, preparation time order, or wasted costs order, and if so the amount, the Tribunal may have regard to the paying party’s (or, where a wasted costs order is made, the representative’s) ability to pay.”

[79]The respondent has made an application for expenses (using the Scottish terminology) in accordance with Rule 73 (1) (a) of the 2024 Rules on the basis that the Interim Relief Application had no reasonable prospects of success (Rule 74(2) (b)).

[80]The respondent refers at paragraph 41 of their submission to Queensgate Investments LLP v Millet

[2021] ICR 863

(Millet) and paragraphs 28 to 29 as support for a proposition that an application for expenses is apt for Interim Relief application. The Tribunal considers that the principal analysis of the EAT is that a hearing to determine an application for Interim Relief should be held in public unless an order restricting publicity was made pursuant to what is now Rule 49. It is not considered that an Interim Relief Hearing could not be subject to an expenses application. However, the Tribunal recognises that expense cases are very much fact-dependent and that it is a fact-sensitive exercise.

[81]The principle is that an award of expenses is the exception and not the rule as described by the Court of Appeal in Lodwick v London Borough of Southwark

[2004] ICR 884

(Lodwick) and Yerrakalva v Barnsley Metropolitan Borough Council

2012 ICR 420

, CA (Yerrakalva); Rule 74 uses the word “may” when talking about circumstances which may lead to the making of such an order. Yerrakalva sets out that costs should be limited to those “reasonably and necessarily incurred”.

[82]The ability of the paying party can be a relevant factor in deciding how to exercise the Tribunal’s discretion (and also when considering how much should be paid).

[83]The Tribunal is not required to consider the ability to pay, but it may choose to do so.

[84]The Tribunal has reminded itself of the guidance set out in Abaya v Leeds Teaching Hospital NHS Trust

[2017] UKEAT 0258/16 (Abaya)

. In Abaya, Mr Justice Singh, at paragraphs 14 to 16, identifies that there are, in essence, three stages in the exercise involved when an Employment Tribunal considers a costs (in Scotland, expenses) application: “14 The first stage is to ask whether the precondition for making a Costs Order has been established. For example, in the present case, whether the claim or part of the claim had no reasonable prospect of success. However, that precondition is merely a necessary condition; it is not a sufficient condition for an award of costs. This is because the second stage of the exercise that has to be performed is that the Tribunal must consider whether to exercise its discretion to make an award of costs. 15. The position was summarised by HHJ Eady QC in the Ayoola case at paragraphs 17 and 18. As she said at paragraph 17, at the second stage of the exercise: “17. ... The Tribunal must then specifically address the question as to whether it is appropriate to exercise its discretion to award costs. Simply because the Tribunal’s costs jurisdiction is engaged, costs will not automatically follow the event. The Employment Tribunal would still have to be satisfied that it would be appropriate to make such an order ...” 16. The third stage of the exercise only arises if the Tribunal decides that it is appropriate to make an award of costs. The third stage is to assess the quantum of that award of costs....”

[85]In Abaya, Mr Justice Singh emphasises, at paragraph 20, that all cases are fact-sensitive, that the assessment of whether to award expenses will depend on the particular circumstances of each case, and that “the discretion under the 2004 Tribunal Rules is very broad [and I would say the same of the 2013 Rules]”. The same broad discretion applies under the 2024 Rules, which are broadly expressed in similar terms to the 2004 Rules.

[86]Discussion

[87]Interim Relief

[88]The claimant at paragraph 5 of the paper apart from the current ET1 (the 2025 claim), provides an extract of what is said to be her pleadings from the 2024 claim within which she asserts that she made internal to the respondent qualifying protected whistleblowing disclosures on various dates, which are (from page one) to be said to have been made on dates (the claimant confirmed at this hearing that the year for each date was 2024) : 1. Three in March 2024; and 2. Five in April 2024; and 3. Six in May 2024; and 4. One in June 2024; and 5. Three in July 2024; and 6. One in August 2024; and 7. Three in September 2024; and 8. Two in October 2024 (both before 15 October 2024, the date of presentation of the 2024 claim); and 9. One in November 2024

[89]The claimant in that extract, in the unnumbered first paragraph, refers to “potential breach of legal obligation of compliance with the public sector equality duty and/ or with duty of care in relation to health and safety in the work place.”

[90]However, at this summary hearing the Tribunal concludes that the claimant gives no specification/fair notice within the ET1 on the substantive information/ (who, in what way and when) on the content, that is what, she says, was the respondent’s failure in terms of S 149(1) EA 2010, in the exercise of its functions by identifying for instance what actual decision the claimant says the respondent failed , in terms of the Public Sector Equality Duty to have due regard to the need to ...etc. There is no fair notice of what specific actions (or omissions) the claimant relies on (the who, what and when). Reference is made to Chandok and Kilraine.

[91]Further Tribunal considers that the claimant gives no specification/fair notice of the substantive information/content, in what way (on what date or approximate date and in what way she asserts the respondent failed to take reasonable care (in the context of the Health and Safety at Work Act). The respondent is not given fair notice of what they (or their employee) are challenged over; there is no notice of what actions (or omissions) the claimant relies on (the who, what and when). Reference is made to Chandok and Kilraine.

[92]In the context of what is said to be the first disclosure (which is said to have been made 25 March 2024), the claimant took the Tribunal to the foot of page 15 of her statement (which sets out she spoke to an individual at 5.50pm on 25 March 2024). In that she describes that she conveyed to an individual that she had said in the presence of a different individual on 7 March 2024 that she was being harassed and discriminated against. There, however, is no notice given either at that part of the statement or in the written pleadings of what actual alleged event (what words or actions) are relied upon as amounting to unlawful harassment (on the assumption that is argued to be in contravention of s26 EA 2010, harassment related to what would require to be identified as protected characteristic), when it took place and who is alleged to have been the perpetrator. Reference is made to Chandhok and Kilraine.

[93]The claimant at paragraph 8 of the paper apart to this (the 2025 claim) claim, describes that in the 2024 claim on 3 April 2025, she made it known that she intended to apply for leave to amend (the 2024 claim) and add individuals in accordance with paragraph 7 of this claim. Paragraph 7 refers to an extract of the 2024 claim.

[94]At paragraph 9 of this (2025) claim, the claimant describes that “from September 2023” she “informed the HR dept, of the failings to the equalities duties (and public sector equality duty) and duty of care happening, even escalating such disclosures to the Director of HR Partnering, and from March 2024 I informed that Equality, Diversity and Inclusion teams of the same.” and describes that she disclosed “that information... tending to show failing lined to harassment and to potential hate incident, in multiple forms and statements...”

[95]Again, there is no fair notice of the specific information (the who, what and when); reference is made to Chandhok and Kilraine.

[96]At paragraph 13 of this (the 2025 claim), the claimant describes that she informed the EHRC by “e-form of the breaches of equality and human rights law” and at paragraph 14 of this claim describes that being a protected disclosure because she “believed it contained information tending to show that my employer was failing to comply with a legal obligation . . . specifically compliance with the public sector equality duty under s149 of the Equality Act 2010; that the health and safety of employees., was likely to continue to be endangered as a result of continuing failings of the duty of care”

[97]The claimant gives no specification/fair notice, in what way (she argues) the respondent failed in terms of S 149(1) EA 2010, which provides that a public authority must, in the exercise of its functions, have due regard to the need to . . .etc. The respondent is not given fair notice of what act or omission (such a specific decision on a date) they (or their employee) are challenged over; there is no fair notice of what actions (or omissions) on which the claimant relies upon as the who, what and when. Reference is made to Chandhok and Kilraine.

[98]The claimant is considered, at this summary hearing, to give no specification/fair notice in the ET1 in what way the respondent failed to take reasonable care (in context of Health and Safety at Work Act). The respondent is not given fair notice of what act (or acts) or omission they (or their employee) is challenged over; there is no notice of what actions (or omissions) on which the claimant relies in the who, what and when. Reference is made to Chandhok and Kilraine.

[99]The claimant asserts at paragraph 20 of this (the 2025 claim) that she was informed on 1 May 2025 of the decision to dismiss, describing that it was said that the “panel has unanimously concluded that there are findings of misconduct which significantly damage the employment relationship and there is an irreparable and irretrievable breakdown in the employment relationship between you and the University” and notes that it is set out there is no right of appeal.

[100]The claimant at paragraph 26 (of the 2025 claim) toward the end of the unnumbered sub paragraph (which start on page 15) references EAT Sylvester in which it was held that where a dismissal had been for some other substantial reason and that reason was a breakdown of trust and confidence, and a Tribunal was entitled to have regard to how that situation came about to determine the fairness of the dismissal.

[101]The claimant at paragraph 26 (of the 2025 claim), toward the end of the unnumbered sub-paragraph (which starts on page 15), also references Ezsias in which the EAT held that an employee who had been dismissed because of the breakdown of his working relationships with colleagues, irrespective of whether he had been responsible for or had contributed towards that breakdown, had not been dismissed because of his conduct. Accordingly, it had been open to a Tribunal to find that disciplinary procedures relevant to allegations of misconduct did not have to be invoked in his case.

[102]The respondent, in its response does not propose that it is not subject to the Public Sector Equality Duty but rather sets out at paragraph 21, that the claimant’s alleged disclosures lack sufficient factual content and specificity for the Tribunal to conclude that it is likely to succeed at a future full hearing.

[103]As has been set out above, the onus of proof on an Interim Relief Application does not sit with the respondent to establish that the principal reason for dismissal was that which the respondent asserts.

[104]Rather, the onus sits with the claimant to show that it is likely that she will succeed in establishing all of the elements itemised and confirmed by the EAT in Al Qasimi v Robinson and Ministry of Justice v Sarfraz.

[105]On the materials presented, and setting aside the contents of the witness statement and on the submissions made, the Tribunal has been unable to form the view that the claimant has discharged that onus.

[106]It is considered taking the case as currently pled, it is not considered that fair notice is given. The giving of such notice of the actual events relied upon, the who what and where is central to any such dispute and is wholly consistent with the overriding objective, a respondent is entitled to know what factual allegations they are facing.

[107]The respondent in their written submission set out (at paragraph 33 of their submission) that the claimant was dismissed because of gross misconduct and an irretrievable breakdown in the working relationship between the claiamnt and the first respondent and argue that this is supported by documents including the termination letter (while the respondent provide witness statements , the Tribunal has, as this an Interim Relief Hearing not taken those into account) working relationship between them and the claimant had broken down. This constituted some other substantial reason, a potentially fair reason for dismissal.

[108]What is apparent, from a broad assessment, is that there is a clear and fundamental dispute between the parties as to the reason for dismissal. The Tribunal reminded itself that it was not its purpose to resolve that dispute (especially given that no evidence is led at interim relief hearings) and that the only question is whether the claimant has demonstrated that she is likely to be able to show at a final hearing that she was dismissed for making a protected disclosure.

[109]There is clearly a lot of material which, subject to fair notice being given, would be examined by the Tribunal at a full hearing. That Tribunal would have the benefit of hearing evidence in chief and cross-examination, and of looking at the documents in that light.

[110]Whilst these points may be tested by evidence being led, it cannot be said, at this stage and from the broad assessment conducted, that it is likely that the complaint of unfair dismissal will succeed - the high test for an Interim Relief application has accordingly not been met.

[111]At present it is not, in the Tribunal’s view, sufficiently clear for it to appear, from the broad assessment which requires to be undertaken at this stage, on the case for which she has given notice (Chandhok) that the claimant is likely to succeed. It is not the Tribunal’s role today to determine the substantive matters as between the parties.

[112]Expenses

[113]Discussion

[114]At the outset of this hearing, the claimant identified that she is not represented and does not have experience in Interim Relief procedure. While the claimant confirms that she is a lawyer with dual (including Spanish Law) qualification, she describes that her legal background is not that of employment law, and in Spain, it was contract law and Immigration law.

[115]The respondents, who as above set out their opposition in written Submissions to the claimant and Tribunal in an email at 9.12 pm on 21 May 2025, list five bullets points of separate documents including; a Bundle of Documents and Index; a Bundle of Authorities and Index, Respondent Submissions, a Respondents Chronology; and as final bullet point; Witness statements for Allan Shanks, Ashely Simon, Simon Cummings and George Lyon.

[116]Within the respondent’s written Submissions (within the document headed Respondent’s Note of Submission in Relation to the Hearing of the Claimant’s Application for Interim Relief ), which extend to 17 pages and 59 paragraphs, in addition to setting out the respondent's opposition to the Interim Relief application, contains application for expenses at paragraphs 41 to 51 (at which paragraph the respondent set out they also included a Schedule of Expenses for the preparation of this hearing).

[117]The separate Bundle Document and Index, which extends to 134 pages, includes that Schedule of Expenses, providing a detailed breakdown of the respondent's solicitor hours (not including today's hearing) and costs set out at the end of that Bundle -at pages 131 to 134, broadly amounting to 68 hours in preparation with a total cost of £10,020.

[118]At paragraph 55 of the respondent Submissions, the respondent set out that they had considered whether to send an expense warning letter to the claimant in advance of this Interim Relief Application; however, given the short period the respondent had to prepare, they decided that doing so would risk becoming sidetracked from the hearing preparation. They set out that, in any event, it was considered futile due to the unlikelihood of the claimant withdrawing the application in such close proximity to the hearing.

[119]Having raised the respondent's expenses application with the claimant, the claimant intimated she understood that she had the right to seek Interim Relief.

[120]The respondent’s proposition, as set out, addresses the first stage of Abaya, though not the second or third stage. In all the circumstances, the Tribunal declines to exercise its discretion in this instance to award expenses.

[121]The Tribunal notes that the respondent is currently preparing the ET3, it is considered that much the preparation for a factual response to afford a detailed ET3 would have been required to be carried out in any event.

[122]On the current factual matrix, while the claimant has a legal background, though not in employment law, she is unrepresented. It is noted that she has a separate claim ongoing, within which she has been directed to provide further specification. While the Tribunal here makes reference to Chandhok, the claiamnt intimated that she anticipated that she would be able to refer to documentation which she included in her bundle. The Tribunal concludes that while further particulars have been directed in her 2024 claim, the claiamnt proceed with the Interim relief Application and the the bundle was prepared by the claimant on the basis that she had not anticipated the fair notice issue as described out in Chandhok.

[123]In any event, the Tribunal is not persuaded that the claimant who is unrepresented and unfamiliar with the process of Interim Relief, ought to have considered that her Interim Relief application had no reasonable prospect of success, against the specific factual matrix the claimant is yet to see the ET3 and it is understood not to be in dispute that her former employer did not offer a right an appeal (as the dismissal understood to be said by the respondent to be on grounds of SOSR resulting from breakdown of working relationship). In the ET3 it is anticipated that the respondent will set out their position in detail and point to case law such as Stockman as basis for the proposition that the ACAS Code of Practice on Discipline and Grievance is therefore disapplied. It is observed that while criticism is made of the claimant’s pleadings above there is an underlying dispute on the factual matrix around the reason for termination.

[124]In any event, it is observed that the respondent elected not to give any advance expense warning letter to the claimant in advance of this Interim Relief Application. In effect, the only notice prior to the hearing was the respondent position set out within and at the end of an un-signposted (in the sense of notice of expenses application) document headed Note of Submission in Relation to the Hearing of the Claimant’s Application for Interim Relief, received by email after 9 pm the evening before this hearing along with a number other documents, none of which (in their title) on the face of them identified any material issue of expenses application, reference is made to Rule 75 of the 2024 ET Rules above 5 125. Interim Relief

Conclusion

[127]The Tribunal’s conclusion therefore that, whilst nothing set out here prejudges the final outcome in these proceedings and the claimant may ultimately succeed in her claim, it cannot be said, at this stage on a broad summary io assessment, that the claimant has a pretty good chance of success. For these reasons, the application for interim relief is refused

[128]Expenses

Conclusion

[130]The respondent’s expenses application is refused. Entered in register: 28 May 2025 and copied to parties EMPLOYMENT TRIBUNALS (SCOTLAND) Case No: 8001688/2024 & 8001081/2025 Consideration of Written Submissions in Edinburgh on 21 August 2025 Employment Judge Sangster Mrs MDM Val Claimant In Person The University of Edinburgh & 4 others Respondents Represented by Mr C Boyle Solicitor

Introduction

[1]The claimant’s application, dated 14 July 2025, for a preparation time order, is refused; and

[2]The respondents’ application, dated 19 November 2024, for strike out failing which a deposit order, is refused.

[1]This Judgment is issued following consideration of the claimant’s application for a preparation time order and the respondents’ application for strike out, failing which deposit orders. The parties consented to the consideration of the applications on the papers. Each application is addressed in turn below.

Background

[2]The claimant is a solicitor, who was previously employed by the First Respondent (R1) as a Contracts Manager.

[3]She presented a claim form on 15 October 2024 (the First Claim), while still employed by the R1, in which she asserted complaints of: 3.1. Direct race and sex discrimination; 8001688/2024 & 8001081/2025 Page 2 3.2. Harassment related to race, sex and disability; 3.3. Victimisation; and 3.4. Detriments as a result of making protected disclosures.

[4]The claimant presented a second claim on 2 May 2025 (the Second Claim), which included complaints of: 4.1. Unfair dismissal; 4.2. That her dismissal by R1 was automatically unfair, contrary to section 103A ERA; 4.3. That her dismissal was an act of victimisation by R1; and 4.4. That, in deciding to dismiss her, R2-R5 subjected her to a detriment contrary to s47B ERA, or victimised her, contrary to s27 EqA.

[5]An order that both claims be considered together was made on 17 June 2025, with the consent of the parties.

[6]Case management preliminary hearings (CMPHs) took place on 16 January, 28 April 2025 and 3 July 2025. A list of the issues was prepared following discussion at the second CMPH. It was updated following discussion at the third CMPH, and appended to the note of that CMPH (the List of Issues). An open preliminary hearing, in relation to disability status took place on 5 June 2025. Preparation Time Order Claimant’s Application

[7]The claimant’s application for a preparation time order, dated 14 July 2025, was made under Rule 74(2)(a) and (b). She set out the basis for her application in her written application, which extended to just over 7 typed pages. She sought the sum of £10,260 in respect of 228 hours spent in preparation for the judicial adjudication of disability status. She asserted, in summary, that: 7.1. The respondents acted unreasonably and vexatiously in disputing disability status in the proceedings; and 7.2. The respondents knew, or ought to have known, from the outset of the proceedings that their position, in disputing disability status, had no reasonable prospects of success. 8001688/2024 & 8001081/2025 Page 3 Respondents’ Reply

[8]The respondents objected to the claimant’s application in a letter dated 28 July 2025, extending to 3 typed pages. They asserted that the respondents were entitled to test whether the claimant met the statutory definition of disability under section 6 of the Equality Act 2010 (EqA), the burden of proof being on the claimant to demonstrate this, and that they acted reasonably in doing so. They were entitled to defend their position and had legitimate arguments, which were advanced at the hearing. The fact they did not succeed on a particular issue does not mean that there were no reasonable prospects of success. It would not be appropriate for the Tribunal to exercise its discretion, even if it finds one of the threshold tests are met.

Relevant Law

[9]Rule 73(2) of the Employment Tribunal Procedure Rules 2024 (the Rules) states: ‘A preparation time order is an order that the paying party make a payment to the receiving party in respect of the receiving party's preparation time while not represented by a legal representative.

[10]Rule 72 defines ‘preparation time’ as time spent by the receiving party (including by any of the receiving party’s employees or advisers) in working on the case, except for time spent at any final hearing.

[11]Rule 74 states that: ‘(2) The Tribunal must consider making a costs order or a preparation time order where it considers that—(a) a party (or that party's representative) has acted vexatiously, abusively, disruptively or otherwise unreasonably in either the bringing of the proceedings, or part of it, or the way that the proceedings, or part of it have been conducted; or

(b) any claim, response or reply had no reasonable prospect of success; or

(c) a hearing has been postponed or adjourned on the application of a party made less than 7 days before the date on which that hearing begins.

[12]The Rules accordingly impose a three-stage test: 12.1. the Tribunal must ask itself whether a party’s conduct falls within rule 74(2)— in other words, is the costs/PTO jurisdiction engaged?; 8001688/2024 & 8001081/2025 Page 4 12.2. if so, it must go on to ask itself whether it is appropriate to exercise its discretion in favour of awarding costs/PTO against that party; and 12.3. if so, the Tribunal must make a determination of the amount of any

award.

[13]As the Court of Appeal reiterated in Yerrakalva v Barnsley Metropolitan Borough Council

2012 ICR 420

, CA, costs in the Employment Tribunal are still the exception rather than the rule. It commented that the Tribunal’s power to order costs is more sparingly exercised and is more circumscribed than that of the ordinary courts. In most cases the Employment Tribunal does not make any order for costs against the unsuccessful party. In Salinas v Bear Stearns International Holdings Inc

2005 ICR 1117

, EAT, Mr Justice Burton, then President of the EAT, expressed the view that the reason why costs orders are not made in the substantial majority of Tribunal cases is that the Rules of Procedure contain a high hurdle to be surmounted before such an order will be considered. Discussion and Decision

[14]In Opalkova v Acquire Care Ltd [2021] 8 WLUK 265, HHJ Tayler noted (with reference to Radia v Jefferies International

[2020] IRLR 431

) that there was an overlap between a claim or response having no reasonable prospect of success and unreasonable conduct in the conduct of proceedings and concluded, at paragraphs 24-5, that there are 3 key questions to be asked in such cases: ‘First, objectively analysed when the response was submitted did it have no reasonable prospects of success; or alternatively at some later stage as more evidence became available was a stage reached at which the response ceased to have reasonable prospects of success? Second, at the stage that the response had no reasonable prospects of success did the respondent know that was the case? Third, if not, should the respondent have known that the response had no reasonable prospect of success? These questions are relevant whether the matter is analysed on the basis that the response had no reasonable prospects of success or that the respondent was guilty of unreasonable conduct in defending or maintaining the defence to the claims.’

[15]The Tribunal considered whether, objectively analysed, when the response was submitted did it have no reasonable prospects of success. The Tribunal concluded that this was not the case. At that stage, it was not clear what impairments the claimant was relying on – she mentioned PTSD and anxiety in her claim form. She clarified at the first preliminary hearing that she was relying on PTSD and would confirm whether she also wished to rely on 8001688/2024 & 8001081/2025 Page 5 anxiety as a separate impairment constituting a disability. She later confirmed that she did, on the provision of the claimant’s impact statement and supporting evidence. The claimant’s position, in her application for PTO, is that she spent 180 hours (equivalent to 22.5 days, working 8 hours per day) ‘drafting the disability impact statement and the letters, and searching, obtaining and organising evidence’. (This was separate to the time which she spent in preparation for the preliminary hearing – researching relevant legislation and case law and drafting submissions, as well as other preparatory work and correspondence, which had separate time allocations.) That alone suggests that the respondent could not have been in a position to assess whether the claimant was a disabled person at the time the response was submitted. If the information was not readily available and apparent to the claimant, it could not have been to the respondents.

[16]The medical evidence which accompanied the impact statement was, as noted in the Judgment regarding disability status, limited and redacted. No medical evidence was produced in relation to the claimant having a separate impairment of anxiety, and indeed the claimant’s assertion that she was a disabled person as a result of anxiety, as a separate impairment, was not accepted by the Tribunal. It cannot be said, in light of this, that the respondents’ position, that the claimant was not a disabled person for the purposes of the EqA as a result of the impairments relied on, had no reasonable prospect of success following the receipt of the impact statement and related evidence.

[17]In light of these findings, the Tribunal concluded that the threshold tests have not been satisfied. The respondents’ conduct did not fall within Rule 74(2)(a) or (b), so there is no basis upon which the Tribunal can consider whether it is appropriate to exercise discretion to make a PTO. Even if the threshold had been met however, the Tribunal would have determined that it was not appropriate to exercise its discretion in favour of awarding PTO against the respondents, taking into account the following: 17.1. The burden of proof is on a claimant to establish disability status (Kapadia v London Borough of Lambeth

[2000] IRLR 69

); 17.2. A significant amount of the evidence of the effect of the impairment came from the claimant’s oral evidence at the preliminary hearing, rather than the medical evidence produced in advance; 17.3. Costs/PTOs in the Employment Tribunal are still the exception rather than the rule (Yerrakalva v Barnsley Metropolitan Borough Council

2012 ICR 420

, CA); and 8001688/2024 & 8001081/2025 Page 6 17.4. The Rules contain a high hurdle to be surmounted before such an order will be considered (Salinas v Bear Stearns International Holdings Inc

2005 ICR 1117

, EAT).

Conclusions

[18]For these reasons, the claimant’s application for a preparation time order is refused. Strike out/Deposit Order Respondents’ application

[19]By letter dated 26 June 2025, extending to 6 typed pages, the respondent applied for strike out in respect of the following complaints: 19.1. Whistleblowing detriment and dismissal; 19.2. That the claimant’s dismissal was an act of victimisation.

[20]The claimant objected to that application on the same date, in an email also extending to 6 typed pages.

[21]The procedure for considering the application was discussed at the CMPH held on 3 July 2025. It was agreed that parties would lodge any comments by way of written submissions in support of their application, and these would then be considered. The respondent submissions, extending to 20 typed pages, and the claimant’s submissions, extending to 32 typed pages, were then considered in chambers. Respondents’ submissions

[22]The respondents provided an overview of the relevant legislation and case law and, in summary, submitted that: 22.1. Despite being afforded the opportunity to do so on numerous occasions, the claimant has not identified the protected disclosures she relies upon, and the respondent does not have fair notice of those disclosures. 22.2. Without fair notice, the respondents cannot respond, and the Tribunal cannot determine whether protected disclosures have been made. The complaints accordingly have no reasonable prospect of success. 22.3. In the alternative, the complaints have little or no prospect of success, as the claimant will not be able to satisfy the tests set out in Kilraine v London Borough of Wandsworth

[2018] IRLR 1850

. 8001688/2024 & 8001081/2025 Page 7 Claimant’s Submissions

[23]The claimant summarised the procedural background and asserted that the complaints were clearly and carefully particularised. She provided an overview of the relevant legislation and case law and, in summary, asserted that the application for strike out was without foundation and there was no proper basis upon which a deposit should be ordered. Relevant Law – Pleadings

[24]In Chandhok v Tirkey

2015 ICR 527

, EAT, Mr Justice Langstaff (then President of the EAT) stated ‘[A] system of justice involves more than allowing parties at any time to raise the case which best seems to suit the moment from their perspective. It requires each party to know in essence what the other is saying, so they can properly meet it; so that they can tell if a tribunal may have lost jurisdiction on time grounds; so that the costs incurred can be kept to those which are proportionate; so that the time needed for a case, and the expenditure which goes hand in hand with it, can be provided for both by the parties and by the tribunal itself, and enable care to be taken that any one case does not deprive others of their fair share of the resources of the system. It should provide for focus on the central issues. That is why there is a system of claim and response, and why an employment tribunal should take very great care not to be diverted into thinking that the essential case is to be found elsewhere than in the pleadings.’

[25]In Adebowale v Isban UK Ltd and ors EAT 0068/15 Mrs Justice Elisabeth Laing observed: ‘In my judgment the construction of an ET1 is influenced by two factors: the readers for whom the ET1 is produced, and whether the drafter is legally qualified or not. The ET1, whether it is drafted by a legal representative, or by a lay person, must be readily understood, at its first reading, by the other party to the proceedings (who may or may not be legally represented), and by the [