Mr F Clarke, Trade Union Representative For the v Respondent — 2021

This was a preliminary hearing on the claimant’s application for interim relief in relation to an alleged automatic unfair dismissal for protected disclosure. The claimant said she had made a protected disclosure on 14 October 2021 about overwork, rest breaks, mental health and working hours, and that she was dismissed on 1 November 2021 because of that disclosure. The respondent said the claimant was dismissed for capability and attitude concerns, not because of any disclosure.

The tribunal applied the interim relief test under s.128 and s.129 ERA 1996, using the authorities it cited on the meaning of “likely” and the need for a “pretty good chance” of success. It accepted that there was a real issue about whether the claimant had disclosed information, but it held that there was a strong argument that the words relied on were directed only to her own working conditions and personal interest. It found that, on the claimant’s pleaded words and witness statement, the Chesterton public-interest factors pointed away from protection: only the claimant was expressly mentioned, the group affected was small, the alleged wrongdoing was not shown to be deliberate, and the respondent was a small company.

On that basis, the tribunal said it could not conclude that there was a “pretty good chance” that a final hearing would find a protected disclosure. It also was not satisfied that it was likely the alleged disclosure was the principal reason for dismissal. Although it noted the claimant’s arguments that the respondent had little contemporaneous documentary evidence, that the probationary period had ended without extension, and that the appraisal document contained no criticisms, it also noted the respondent’s evidence that performance concerns pre-dated the alleged disclosure and that oral evidence would be central. Interim relief was therefore refused.