Mr R Dennis, Counsel For the 1st v Respondent — 2023

This was an application for interim relief, not a full merits hearing. The claimant, an investment adviser employed by the 1st respondent and previously transferred under TUPE, had presented a claim alleging whistleblowing detriment, automatic unfair constructive dismissal for whistleblowing, and ordinary unfair constructive dismissal. The interim relief application related to the automatic unfair dismissal element said to arise from protected disclosures made in letters dated 21 October 2022 and 1 January 2023.

The tribunal set out the statutory and case-law framework, including s103A and s43B ERA 1996, the distinction between protected disclosures and later conduct, the burden of proof approach in Kuzel, the constructive dismissal principles, and the interim relief test under s128(1) ERA 1996 as explained in Taplin and later authorities. The judge treated the hearing as preliminary and repeatedly said the conclusions were based on limited evidence and should not influence the full merits tribunal.

On the evidence considered, the judge was not able to say it was likely that the claimant would prove he had made protected disclosures, particularly because the reasonableness of his belief would need fuller examination. More importantly, the judge was not persuaded that it was likely the claimant would show those disclosures were the reason or principal reason for the acts said to have led to resignation, including the deferment of the bonus, the 24 January 2023 protected conversation, and the 1 February 2023 suspension.

The judge considered that the protected conversation and the suspension could be explained by the respondent's concern about the claimant's unauthorised transfer of company data and files, which had emerged through an IT investigation. Although the judge thought a tribunal might find the respondent was trying to encourage the claimant to leave, the data issue meant the case did not meet the 'likely' or 'pretty good chance' threshold for interim relief. Interim relief was therefore refused.