Mr J Cook, counsel For the v Respondent — 2020

This was a remote hearing on the claimant’s application for interim relief under section 128 Employment Rights Act 1996, made in support of a section 103A protected-disclosure dismissal claim. Employment Judge Hodgson applied the interim-relief approach from Taplin and later authority, and assessed whether the claimant had a pretty good chance of succeeding at the eventual full hearing on the material then available. The judgment did not determine the merits of the underlying age discrimination, race discrimination, or ordinary unfair dismissal claims.

The judge focused on the claimant’s Navex disclosures made between 8 June and 9 July 2019. He held that the material relied on was expressed in very general terms and was closer to allegation than disclosure of information, with repeated language such as “it needs to be investigated” not readily identifying factual information that tended to show a relevant failure. The claimant had chosen to rely only on disclosure 5 for the interim relief application, and the judge said he was unlikely to establish that these statements amounted to protected disclosures within section 43B.

On the statutory elements of protection, the judge found it difficult to identify any legal obligation relied upon for subsection (b), noting that the Bloomberg journalistic code had not been shown to create a legal obligation and that this point was not pursued in submissions. On subsection (e) and (f), he accepted that the claimant believed burning fossil fuels led to environmental damage, but considered that he had not identified the required causational link between specific information and a relevant failure, nor a sufficient basis for deliberate concealment. He also held that the public interest case was weak because the assertions were general and widely shared rather than tied to a specific failure.

The judge further found that, even if protected disclosures had been made, the claimant was unlikely to show causation. He referred to documentary evidence of long-running performance concerns, the PIP process, warnings, appeals, and the dismissal by Ms Emma Ross-Thomas, and concluded that the likely principal reason for dismissal was capability rather than whistleblowing. The application for interim relief was therefore dismissed.