In person For the v Respondent — 2020

Mr H J Moran-Cirkovic applied for interim relief under section 128 Employment Rights Act 1996 in support of an automatic unfair dismissal claim under section 103A. Employment Judge Hodgson applied the Taplin and Chackro approach, treating the question as whether, on a summary assessment, it appeared likely that the claimant would succeed at the final hearing.

The claimant relied on five alleged protected disclosures said to concern a proposed furlough arrangement, including his view that furloughed employees could not continue working and his assertion that the respondent wanted him to work while furloughed. The judge found it unlikely that the first three matters were disclosures of information at all, because they were largely the claimant's own view of the rules or proposals about furlough and training. He also found the contemporaneous recordings and documents did not support the claimant's account that the respondent insisted he work unlawfully while furloughed or threatened dismissal if he did not comply.

For the later May communications, the judge considered that the factual position had changed because the claimant's performance and delivery had been questioned and the respondent was already considering replacement. He considered there was a real prospect that the final tribunal would find those emails were made to strengthen the claimant's negotiating position rather than as protected disclosures made in the public interest. The judge therefore held it unlikely that the claimant would establish protected disclosures, and also unlikely that any dismissal was because of them.

The judge further noted a real possibility that the final tribunal might find the claimant resigned by his 8 June 2020 letter before the respondent's express dismissal, and doubted that he could show a fundamental breach of contract for constructive dismissal purposes. The application for interim relief was dismissed.