Mary Smith v NHLEX Limited and 3 others — 2023

This was an interim relief application under s128 ERA 1996 in a dismissal claim said to arise from protected disclosures under s103A ERA 1996. The tribunal applied the summary approach described in Raja, Wollenburg and Chacko, and treated the statutory threshold as the high one discussed in Taplin, Dandpat and Sarfraz: the claimant needed to show a significantly higher likelihood than merely being more likely than not.

On the protected disclosure questions, the judge found the claimant had a pretty good chance of proving that she made disclosures of information likely to amount to a breach of legal obligation, and that the disclosures could be said to be in the public interest because they concerned the impact on clients of a solicitors' firm. The tribunal therefore considered it more than likely that the disclosures were protected disclosures when made to the claimant's employers.

The application failed on causation. The judge was not satisfied that it was likely the final tribunal would find the protected disclosures were the principal reason for dismissal. He identified disputed factual issues about the claimant's conduct in meetings, the respondent's account of her professional status and alleged gross misconduct, and the possible disparity of treatment involving other employees, all of which required oral evidence and findings of fact at a final hearing. The application for interim relief was dismissed, and the hearing listed for 22 June 2023 was vacated.