Mr D Panesar, counsel For the v Respondent — 2019

This was an application for interim relief under s.128(1)(a) ERA 1996 arising from the claimant’s claim that she had been automatically unfairly dismissed under s.103A ERA 1996 for having made protected disclosures. The tribunal applied the summary-assessment approach described in London City Airport Ltd v Chacko and the ‘pretty good’ chance standard in Taplin v Shippam, and noted the authorities in Ministry of Justice v Sarfraz, Dandpat v University of Bath and Hancock v Ter-Berg. It also recorded the statutory framework under ss.103A, 128 and 129 ERA 1996 and s.43B ERA 1996.

The tribunal found that there was a live dispute about whether the claimant had continuous service with the respondent sufficient for ordinary unfair dismissal rights, and proceeded on the basis that the burden on this application lay on the claimant to show the reason for dismissal. It also noted that several of the disclosures relied on in evidence were not pleaded in the claim form, which mattered to fairness because the respondent had not had an opportunity to answer them in evidence. The judge therefore treated the pleaded disclosures and the later whistleblowing report separately, and declined to assume at the interim stage that the claimant was likely to establish the full disclosure case.

On the reason for dismissal, the tribunal accepted that the respondent had documentary material capable of supporting Mr Rudnick’s evidence that he had genuine and significant performance concerns before the pleaded disclosures. The judge referred to examples including concerns about recruitment in Dubai, delays in executive contracts, remuneration policy, an employee grading exercise and the presentation of a benchmarking exercise. The tribunal also noted Mr Rudnick’s emails of 21 August 2019 and 30 August 2019 raising concerns about management of the HR department and saying he wanted to discuss the claimant’s performance.

Having considered the chronology as a whole, including the 4 September 2019 meeting, later emails, the lack of a formal performance process, and the timing of the whistleblowing report to Mr Peplar, the tribunal concluded that it could not say on a summary assessment that the claimant was likely to succeed in showing that dismissal was caused by protected disclosures. It accepted that the absence of a procedure and the handling of the dismissal meeting might be relevant at a final hearing, but held that those features did not at this stage make it likely that the claimant would succeed. The application for interim relief was therefore refused, and no monetary remedy was awarded.