Mr C G De Oliveira v Thrive Teviot House Nursery Day Care of Children and Others: 8001892/2025

EMPLOYMENT TRIBUNALS (SCOTLAND)

Case No 8001892/2025

Venue Edinburgh

Hearing 22 August

Between

Mr C G de OliveiraClaimant

Thrive Teviot House Nursery Day Care of ChildrenRespondent

Before

Employment Judge M A Macleod

Date 26 August 2025

REASONS

[1]The claimant presented a claim to the Employment Tribunal on 5 August 2025, in which he complained that he had been unfairly dismissed, discriminated against on the grounds of sex and automatically unfair constructive dismissal following the making of a number of protected disclosures to the respondent.

[2]In his claim, he made an application for interim relief, and accordingly, in line with the procedure under section 129 of the Employment Rights Act 1996, a Hearing was listed to take place on 22 August 2025 in order to determine that application as soon as practicable.

[3]The claimant appeared on his own behalf. Mr McNeill, People Advisor, appeared for the respondents.

[4]Both parties presented documents to the Tribunal.

[5]When the Hearing was listed, the claimant submitted an application to postpone it, as he was having work carried out at home and could not attend the Hearing. That application was refused on the basis that the Tribunal did not consider it to be a sufficient reason to postpone and relist a Hearing which had been fixed at very short notice in a busy period for the Tribunal. Section 128(5) of ERA states that the Tribunal shall not exercise any power it has of postponing the Hearing except where it is satisfied that special circumstances exist for doing so. In this case, no such special circumstances were presented to the Tribunal.

[6]At the outset of the Hearing, I explained that the Tribunal would not hear evidence, but would hear submissions from both parties on the question of whether the application for interim relief should be granted.

[7]The claimant said that he believed that he was likely to succeed in his claim because he was unfairly treated, and demoted due to the fact that he had made protected disclosures. He had complained that there were breaches of safeguarding and the welfare of children, and “poor malpractices” within the room for which he was responsible. In particular, he complained that staff had poor hand hygiene when handling food, used mobile phones in front of children and left their mobile phones plugged to power sockets to charge, but covered with a fabric pillow. He insisted that this amounted to a fire risk.

[8]The claimant maintained that as a result of raising these concerns, he was demoted, and forced to resign his employment. The respondent failed to investigate his concerns and no consistent course of action was taken against those whom he had complained about. He felt very aggrieved at losing his job, which he was well-trained and experienced to carry out. He did accept a lower-paid job, with fewer responsibilities, on being moved to a different location, but only did so under duress.

[9]The claimant submitted that he has a very good chance of success at Tribunal as his concerns were not dealt with by the respondent, and he complied with the Tribunal Rules of Procedure in submitting his application for interim relief. 10.He argued that the burden of proof was on the employer to show that he had not conducted himself appropriately as a room leader. 11.For the respondent, Mr McNeill opposed the application for interim relief. He considered that the respondent had acted appropriately. When he raised his concerns, management conducted an informal meeting with the claimant and agreed to work together. When he raised his formal complaint, a grievance process was instituted, in which an impartial manager heard the grievance. The grievance was not upheld, following an investigation into the matters raised by the claimant. 12.The claimant was moved to a different work setting while the grievance was ongoing, in a supportive move. 13.Once the grievance was concluded, it was made clear to the claimant that there was a risk that he may not pass his probationary period, and that if he did not, his employment would be terminated. As a result, the respondent discussed and agreed with him that he would be offered a new contract allowing him to focus on caring for the children, without supervisory responsibilities. The claimant accepted that position, which did involve less pay and fewer responsibilities. The respondent acted this way as they wished to retain and support the claimant. He accepted the new role both verbally and in writing. 14.In response, the claimant said that he did agree and sign the paperwork for the new contract but did so only under duress. He had proposed that the other staff in his room should be relocated, and not him, and that he should be allowed to work with more experienced staff. He also considered that the respondent should have reported staff to the Scottish Social Services Council (SSSC), the registration body for staff working in the nursery, but failed to do so. Discussion and Decision

[15]In order to succeed with his application for interim relief, the claimant must demonstrate, in accordance with section 129 of ERA, that it is likely that in determining his claim, the Tribunal will find that the reason or principal reason for his dismissal, if he is found to have been dismissed, was that he made a protected disclosure or protected disclosures. 16.I take account of Taplin v C Shippam Ltd

[1978] IRLR 450

, in which the EAT defined likely as meaning “a pretty good chance of success”. Further, Mr Justice Underhill, in Ministry of Justice v Sarfraz

[2011] IRLR 562

, EAT, observed that the test of a pretty good chance does not simply mean “more likely than not” but connotes a significantly higher degree of likelihood, “something nearer to certainty than mere probability.” 17.This is undoubtedly a stringent test to overcome for the claimant. 18.I also take account of to Chesterton Global & Anor v Nurmohamed & Anor (Rev 1)

[2017] EWCA Civ 97

in relation to the proposition that his disclosures should be considered to have been made in the public interest. 19.I also referred to Cavendish Munro Professional Risks Management Ltd v Geduld

2010 ICR 325

, which set out the principle that a worker’s disclosure should disclose facts, and not merely amount to allegations. 20.In my judgment, the claimant has not succeeded in demonstrating that he has a pretty good chance of success in his claim of automatically unfair dismissal in this case, for the following reasons:(a) The claimant requires to demonstrate that he made protected disclosures within the meaning of section 43B of ERA. That means fulfilling one of the categories set out in section 43B(1). Broadly, this requires the claimant to have made allegations in relation to criminal offences, the failure to comply with a legal obligation, a miscarriage of justice, the endangerment of health and safety, damage to the environment or that information tending to show any of these issues has been or is likely to be deliberately concealed. In my view, there is some doubt that he will be able to show that his disclosures fit these conditions, apart from his assertion that placing mobile phones on chargers under fabric pillows amounted to risk to health and safety of the children (he insisted it was a serious fire risk). The Tribunal would require to consider carefully each of these assertions to establish which, if any, of the categories in section 43B(1) they would fall into. In my view, there is some doubt as to whether or not the claimant could prove this.

(b) In addition, the claimant requires to demonstrate that he has disclosed information, not merely made allegations. The claimant’s grievance was investigated, and an outcome letter produced which addressed these matters. It is not clear that there was any acceptance by the respondent following investigation that the claimant’s allegations were factually correct. The matter remains in dispute between the parties.

(c) The claimant must also then prove that he believed, reasonably, that the assertions made were in the public interest.

(d) The claimant then requires to demonstrate that he was constructively dismissed as a result of having made the protected disclosures. It is apparent that this is keenly disputed by the respondent. Their position is that the claimant resigned voluntarily; that his “demotion” followed a series of conversations about his performance in which he verbally agreed to take a new position at a lower salary; that he subsequently confirmed this agreement by signing a new contract to this effect. As a result, there is a factual dispute about the circumstances in which the claimant came to the decision to resign, and the sequence of events leading to that decision. The claimant made clear that he only signed the contract under duress. Without hearing evidence, it is not possible to find that the claimant has a pretty good chance of success in proving that he was constructively unfairly dismissed by the respondent, or that it was because he had made protected disclosures to them. 21.It is therefore my decision that the claimant’s application for interim relief should be refused. 22.I should clarify that I do not find that the claimant’s claim is hopeless, or without reasonable prospect of success: that is not the test which I require to apply. It is my conclusion that because so much of the claimant’s case requires to be clarified by evidence, which is strongly disputed between the parties, that it cannot be concluded that the claimant’s chances of success at a full Hearing are pretty good. The application is therefore refused.