Ms Nichole Gaskin v The Arreton & Oakfield Federation/Oakfield Primary School — 2020

Ms Nichole Gaskin applied for interim relief under section 128 of the Employment Rights Act 1996 after her employment with The Arreton & Oakfield Federation/Oakfield Primary School ended with an effective date of termination of 16 January 2020. The application arose from a claim under section 103A ERA that she had been automatically unfairly dismissed because she made a protected disclosure. The judge recorded that the claimant also intended to bring other claims, including Equality Act 2010 claims and an unfair dismissal claim, but those proceedings had not yet been commenced and were not determined on this occasion.

The tribunal heard no oral evidence. It relied on witness statements from the claimant, her partner Robbie Hamilton, Colin Hayley and Mary Hillary, together with documentary material. The judge accepted that something happened between the claimant and Ms Gains, the Head of Safeguarding, on 18 March 2019. On the material before the tribunal, the claimant had a pretty good chance of showing that she made a qualifying disclosure within sections 43A to 43C ERA and section 43B, although the judge was not sure whether section 43B(f) was engaged.

The application nevertheless failed because the tribunal was not satisfied that the claimant had a good chance of showing that the protected disclosure was the principal reason for her dismissal. The judge noted that the later refusal of leave in June 2019, the unauthorised leave issue, and the July 2019 disciplinary matters arose some months after the March incident, and that there was no obvious haste to move to disciplinary action and dismissal. The judge also said that any point about consistency of treatment was capable of explanation and did not meet the higher threshold for interim relief.

The tribunal said there may be questions to answer about the disciplinary procedure and the decision not to adjourn the hearing, but those matters were more likely to arise in the section 98(4) unfair dismissal claim at the final hearing. The interim relief application was therefore dismissed.