Mr C Wallis v Venesky-Brown Recruitment Ltd and C Brown: 8002351/2025
EMPLOYMENT TRIBUNALS (SCOTLAND)
Case No 8002351/2025Venue EdinburghHearing 17 October 2025
Between
Mr C WallisClaimantVenesky-Brown Recruitment Limited 1Respondent
Before
Employment Judge SmithDate 14 November 2025
JUDGMENT
The claimant’s application for Interim Relief is dismissed.
REASONS
[1]At an interim relief hearing that took place in person on 17 October 2025 the Tribunal dismissed the claimant’s application for interim relief in an oral judgment (that application being legally competent against the first respondent only). These written reasons have been issued at the request of the claimant, such request having been made at the conclusion of the hearing and thus within the 14-day time period specified by rule 60(4)(b) of the Employment Tribunal Procedure Rules 2024.
Introduction
[2]By way of a claim form presented to the Tribunal on 1 October 2025 the claimant brought a claim of unfair dismissal and an application for interim relief. Whilst the claim form contains other claims and names a second respondent to those claims, a claim of unfair dismissal – and therefore an application for interim relief – can only legally proceed against the (former) employer, which is the first respondent.[3]The claim of unfair dismissal presented is solely based upon the claimant’s assertion that the principal reason for his dismissal was the automatically unfair reason of him having made a protected disclosure, contrary to s.103A Employment Rights Act 1996. The application for interim relief was made within the necessary seven-day timescale set by s.128(2) as the parties agree that the claimant’s effective date of termination was 26 September 2025.[4]Following a discussion with the parties at the outset of the interim relief hearing I decided that I should decide the main issue of principle first. That issue is the s.129(1) question, namely whether it appears to the Tribunal that it is likely that on determining the complaint to which the application relates the Tribunal will find that the reason (or if more than one the principal reason) for the dismissal is the s.103A reason.[5]If I decided that question in the first respondent’s favour then the application for interim relief would fail and go no further. However, if I decided that question in the claimant’s favour it would then be necessary to go on to address the additional formalities required of the Tribunal by ss.129 and 130. The first respondent confirmed that it was not willing to reinstate or re-engage the claimant in the meantime in that event, so ultimately I would only potentially have to consider making a continuation of contract order.[6]In deciding the s.129(1) issue I made no factual findings and nothing in what I will come on to say in these reasons should be taken as my having done so. Any future Tribunal deciding this case will not be bound by my summary assessment of the likely outcome from the perspective of this very earliest stage in the proceedings. It may be that the outcome is different, or possibly even very different, from that which I considered likely to occur as at the date of the interim relief hearing.
The law
[7]In “whistleblowing” cases brought under s.103A Employment Rights Act 1996, s.128 of the Act confers a power upon Employment Tribunals to make certain orders for interim relief pending the determination of the complaint, if certain conditions are satisfied. The first is that a s.103A claim is made, and the second is that it is presented within seven days of the employee’s dismissal. Both of those conditions were satisfied in this case.[8]The third condition is that I must be satisfied, on a summary assessment based on the information that is available to me, that the claimant is “likely” that on determining the claim the Tribunal will find that the s.103A reason was the principal reason for the claimant’s dismissal (s.129(1)).[9]Approaching the same question but from the opposite direction, it is also trite law that if I am persuaded that the reason advanced by the employer – in this case, a conduct-related reason – is likely to be found to be the principal reason then it is not necessary to make an assessment of whether any of the contended-for protected disclosures are likely to be found to be protected disclosures by the Tribunal at the full hearing of the claim: Hall v Paragon Finance Plc [2024] EAT 181 (Employment Appeal Tribunal).[10]In the context of this kind of application, “likely” has been defined as meaning something more than merely the balance of probabilities likelihood (i.e. 51%) but something substantially higher, namely a “pretty good chance” (Taplin v C Shippam Ltd [1978] IRLR 450 and Sarfraz v Ministry of Justice [2011] IRLR 562, both EAT).[11]The assessment of likelihood also involves the Tribunal considering any ancillary or incidental matters upon which the success of the claim depends (Hancock v Ter-Berg [2020] IRLR 97, EAT). Such matters can actually be highly significant, and they could for example include the question of as whether the Tribunal has jurisdiction to hear the unfair dismissal claim at all, the employment status of the claimant (whether they were an “employee” of the respondent), whether an amendment to the claim form is necessary and likely to be granted, etc.[12]Whilst an application for interim relief by definition involves a broad-brush assessment and (generally) the hearing of no live evidence, it is an exercise that must encompass each element of the claim which the claimant will be required to establish at the full hearing, subject to the point made in Hall, above. He must also demonstrate – to the Taplin “pretty good chance” standard – his satisfaction of each component inherent in the making of a protected disclosure (see Sarfraz). In a s.103A-based interim relief application that necessarily involves the Tribunal determining whether the claimant has a pretty good chance of establishing: 12.1. That he made a disclosure of information to the employer; 12.2. That he believed that the information disclosed tended to show one or more of the matters itemised in s.43B(1) of the Act; 12.3. That his belief was reasonable; 12.4. That he reasonably believed that the disclosure was made in the public interest; and, 12.5. That the disclosure was the principal reason for his dismissal. The material available to me[13]The summary assessment I was required to carry out in order to determine whether it is indeed “likely” (in that higher sense) necessarily included me looking at any documents the parties put before me, but also to read any witness statements that had been prepared even at this early stage in the proceedings.[14]Both sides provided documents and witness statements in advance of this hearing, and I read those statements. I also read the entirety of the claimant’s documents (a series of individual documents placed in plastic wallets) such documents as I was directed in the respondent’s 67-page bundle. Naturally I was in fact only taken to a limited number of those documents by the parties during the course of the hearing.[15]I reminded myself that all of the evidence was untested at this stage. The likely reason for dismissal[16]I shall start with the reason for dismissal, and whether it is “likely” that the reason will be found to be the making of a protected disclosure. At this stage in my decision I am working on the presumption that the claimant will establish that he did make a protected disclosure. Carrying out the broad-brush assessment that is required of me, I reviewed the material that has been made available to me but of course have not made any findings of fact, only observations, in relation to that material.[17]The reason for dismissal is the set of facts known to the employer, or the beliefs held by him/her, that cause them to dismiss the employee. That requires looking into the mind of the person responsible, which in this case is Craig Brown, the second respondent to the claims. Mr Brown is the Managing Director of the first respondent; the claimant having been employed as the Sales Director. Examining the mindset of the person is very difficult to do, particularly on an expeditious summary assessment that is required in an interim relief application, and particularly where the evidence is partial and entirely untested.[18]Doing what I can on the material available to me, I turn first to that partial and untested evidence. Chief amongst it is the witness statement of Mr Brown and the dismissal letter. Mr Brown accepts that he was aware of an email sent by the claimant to Nadia Mikrouli (the first respondent’s Head of HR) on 26 September 2025 at 09:41, and he also accepts that this email formed part of the reason for dismissing the claimant. I pause to note that the claimant was dismissed on the afternoon of very same day, without any prior alert having been given to the claimant of the possibility of being dismissed, and without any procedure of any kind having been adopted by the first respondent.[19]The thrust of Mr Brown’s explanation is that it was the “tone” used by the claimant in this particular email (“inappropriate and inflammatory” is how Mr Brown puts it) and the fact that this email was the culmination of previous correspondence from the claimant that was the problem. It is said by Mr Brown that the claimant’s correspondence had caused upset to Ms Mikrouli, necessitating her having time off sick, and that she was upset on 26 September 2025 itself.[20]I have examined the claimant’s email. Without making findings of fact, my view of it is that it could not sensibly be described as inappropriate or inflammatory, whether in tone or in its content. I bear in mind that Ms Mikrouli is Head of HR and considered that the matters raised by the claimant seemed to be precisely the kind of thing an employee in Ms Mikrouli’s position could be expected to read and have to deal with. Whilst the email could be said to have been expressed in fairly robust terms, it is not obviously inappropriate or inflammatory and I think that that contention is likely to be found to be fanciful.[21]In addition, some parts of the email may well be found to be true. By way of an example, the claimant was not interviewed about allegations of sexual harassment made by a colleague. It was accepted by the first respondent that he was not interviewed, and it was plain from the notes of an investigatory meeting in April 2025 (the claimant being interviewed as a witness) that within that interview the claimant had indeed made allegations that the same colleague had been subjected to sexual harassment by Mr Brown. “Inappropriate and inflammatory” would not be appropriate labels to describe a truthful contention of not being interviewed, particularly where the recipient of that contention is the Head of HR. Of course, I should make it abundantly clear that I have made no finding, and indeed no observation whatsoever, on the subject of whether Mr Brown has been the perpetrator of sexual harassment.[22]I then turn to the dismissal letter. It was sent to the claimant at 16:28 on 26 September 2025, the same day as his email to Mr Mikrouli. No warning or notice was given to the claimant. He was not spoken to and his version of events was never ascertained. No disciplinary process of any kind was utilised before Mr Brown decided to dismiss the claimant. The letter itself incorporates the same essential reasoning for dismissal as Mr Brown set out in his witness statement. However, no specifics are provided at all as to which parts of the claimant’s earlier email Mr Brown found objectionable.[23]The Tribunal may well draw the inference against the first respondent owing to the complete lack of process, an instantaneous dismissal and a total lack of specifics as to which parts of the claimant’s earlier email Mr Brown found objectionable. It may mean in due course that Mr Brown’s evidence on the reason for dismissal should not be accepted. However, is it safe for me to reach any view as to the “likelihood” of that happening at the full hearing of the claim, or indeed draw any inferences at all?[24]In my judgment, it is not right for me to draw inferences of any kind. My task is solely to consider whether the reason the claimant puts forward is going to be the “likely” reason for dismissal, which is a different question to whether the first respondent’s reason is likely to be accepted. I have decided that it is not “likely” (in the Taplin/Sarfraz sense) that the Tribunal will find the reason to be the s.103A reason at the full hearing, and my reasons are as follows: 24.1. This kind of application must be dealt with on a summary basis, by definition. The evidence that is available is untested. In whistleblowing cases the Tribunal’s findings in relation to the reason for dismissal, depend very heavily on the evidence given at the hearing, and that evidence is then tested/challenged. It is so thorough an exercise that conclusions on the “likelihood” of an inadmissible reason (to the Taplin/Sarfraz standard) are very hard to reach at the interim relief stage at all, as the necessary work has naturally not been carried out. 24.2. Even if the first respondent’s ostensible reason for dismissal is debunked at the full hearing, it does not automatically follow that the claimant’s reason must have been the reason. I am conscious of what the claimant must do in terms of putting the inadmissible reason into the Tribunal’s analysis before that reason can be found (see Kuzel v Roche Products Ltd [2008] ICR 799, England and Wales Court of Appeal). The essential point is that simply because Theory A is disproved does not mean that Theory B is proved. 24.3. Other information has been made available for me. Of that information, of particular relevance was mention within Mr Brown’s statement of an allegation against the claimant – put forward by him as another reason for dismissing him – in relation to the claimant’s misuse of the Vincere financial software. In addition, there was the earlier correspondence from the claimant to Ms Mikrouli (aside from the 26 September 2025 email) which Mr Brown stated had had a cumulatively negative effect on her. There was also the contention by Mr Brown that his relationship with the claimant had completely broken down in any event, the existence of a grievance against Mr Brown (not the claimant’s grievance, but one in which he participated as a witness), and of course the claimant’s own contention that his dismissal was caused not merely by one but by seven different protected disclosures (only one of which had certainly come to the attention of Mr Brown). Even at this summary stage, the picture seemed to me to be potentially very complicated and not entirely clear which contended-for reason – or reasons – might win out.[25]Having not been satisfied that the Tribunal is “likely” to find that the principal reason for the claimant’s dismissal was the making of a protected disclosure, it is not necessary for me to go on to decide whether it is likely that any of the claimant’s seven alleged protected disclosures would go on to meet the statutory definition.[26]It is, however, necessary for me to dismiss this application for interim relief, and that is my judgment.