In person For the v Mr N Henry, Consultant — 2022

Employment Judge N J Roper heard the claimant's application for interim relief on 9 December 2022 at a remote hearing on the papers. The claimant, a Traffic Management Operative employed from 23 February 2022, said that on 24 November 2022 at a site in Starcross strong winds repeatedly blew over safety signs, making the work unsafe. He stopped the work, told supervisor Mr Warren that the contractors were not complying with health and safety requirements, and said he would not return to site. Mr Warren then required him to attend the respondent's office at Buckfastleigh and summarily dismissed him; the later written reason given was failure to comply with a reasonable management instruction to go back on site.

The tribunal set out the statutory framework for protected disclosures and interim relief, including sections 43A, 43B, 43C, 48(2), 103A and 128 of the Employment Rights Act 1996. It referred to London City Airport Ltd v Chacko, Ryb v Nomura International plc, Taplin v C Shippam Ltd, Ministry of Justice v Sarfraz and Dandpat v University of Bath. The judge said interim relief requires an expeditious summary assessment and that the claimant must show a "pretty good chance of success".

After discussion, the claimant clarified that he relied on two potential automatically unfair dismissal arguments: whistleblowing under section 103A based on a verbal disclosure to Mr Warren about the contractors' non-compliance and the risk to health and safety, and a section 100(1)(d) and (e) case based on serious and imminent danger and refusal to return to work. The tribunal considered the second basis more arguable on the material before it, but section 128(1)(a) does not permit interim relief on a claim relying on section 100(1)(d) and (e).

The tribunal therefore could not say that the claimant was likely to succeed on the whistleblowing basis to the level required for interim relief and dismissed the application. It also recorded that it had not made findings of fact because that was not required for the statutory test, and it made separate case management orders for the full hearing of the underlying claims.