Mr. Crawford, Counsel v Respondent — 2022

The claimant, Mr Hitesh Varambhia, presented a claim on 6 October 2022 and applied for interim relief under section 128 of the Employment Rights Act 1996 in relation to an automatically unfair dismissal complaint under section 103A. The tribunal heard the matter on 3 November 2022, proceeded by summary assessment on the papers, and declined to hear oral evidence under Rule 95 of the 2013 Rules.

The tribunal applied the statutory interim relief test in section 129 ERA 1996 and the authorities it cited on protected disclosures and the meaning of “likely”, including Taplin v C Shippam Limited, Justice v Sarfraz, Cavendish Munro Professional Risk Management v Geduld, Kilraine v LB Wandsworth, Chesterton Global v Nurmohamed, Babula v Waltham Forest College, Eiger Securities LLP v Korshunova, and Blackbay Ventures v Gahir. It was not persuaded that all of the matters relied on by the claimant would be shown to be protected disclosures, because several passages in the documents appeared to be questions or discussions arising in the context of his senior leadership role rather than disclosures of information.

The tribunal nevertheless accepted that two matters were likely to amount to protected disclosures: concerns about the locking of the senior leadership team in the office for health and safety reasons, and concerns about data security risks associated with third-party personnel in secure office areas. It also noted the claimant’s grievance of 8 September 2022, in which he said he had made public interest disclosures about breaches of legal obligations.

The application failed because the tribunal was not satisfied that it was likely that the reason, or principal reason, for dismissal was those disclosures. It relied on the respondent’s case that the claimant had been investigated for over 200 security breaches involving emails sent from his work account to his personal email, that he was given a final written warning rather than dismissed at that stage, that the respondent had already decided in May 2022 not to extend his fixed-term contract, and that the size of the senior team reduced as infection rates fell and other senior roles ended. The tribunal dismissed the interim relief application and recorded that it had no jurisdiction to determine this claim.