Mr J Rowlands v Phoenix Healthcare Distribution Limited — 2023

The tribunal heard only the claimant’s application for interim relief. Applying the statutory test under ss.128-129 ERA 1996 and the authorities it cited on the 'pretty good chance' threshold, it treated the exercise as a predictive summary assessment rather than a final determination. It considered the claimant had a pretty good chance of showing that he had made protected disclosures, including communications about driver hours, fatigue and legal compliance to management and, potentially, to HSE and DVSA/VOSA.

On the question how the employment ended, the tribunal considered it more likely that the claimant brought the contract to an end himself on 19 May 2023, in substance by treating the relationship as over after the dispute about unpaid unauthorised absence and return to work. It did not see clear evidence that the respondent itself communicated a termination. The tribunal said the overall picture had the hallmarks of constructive dismissal rather than an express dismissal by the respondent.

The tribunal was not satisfied that there was a pretty good chance that the principal reason for any dismissal would be the protected disclosures. It found it more likely that the events relied on by the claimant arose from a grievance and return-to-work process, the occupational health report, uncertainty about the claimant’s absence status, and the respondent’s view that he was not engaging with a return-to-work meeting. It treated the alleged 15 March promise to keep hours within 11 as more likely a review request, the 24 March sickness/stress coding as more likely a misunderstanding of the claimant’s own emails, and the 27 March grievance meeting as a standard grievance process. Interim relief was therefore refused, and the tribunal said both cases would proceed to case management.