Mr K Burke v Alan Baxter Limited — 2024

Mr Burke presented his claim on 22 May 2024 and included an application for interim relief under section 128(1)(b) ERA 1996. The tribunal applied the section 129(1) test and the authorities it cited on the meaning of “likely”, including Taplin v C. Shippam Ltd, Ministry of Justice v Sarfraz, Dandpat v University of Bath and Parsons v Airplus International Ltd. It emphasised that the exercise was a summary assessment only, that no oral evidence was heard, and that any conclusions were not binding on the final tribunal.

The claimant relied on a series of alleged protected disclosures relating to health and safety, fire safety and GDPR/privacy matters. The tribunal held that the first, second, third, fourth, fifth and ninth disclosures were not shown, at this stage, to have a pretty good chance of amounting to protected disclosures. The reasons included lack of specificity, disputes about the scope of the claimant’s duties and training, and, in relation to the GDPR/privacy complaints, the absence of a sufficient basis for a reasonable belief that the respondent had breached the relevant obligations. The tribunal accepted, or the respondent conceded for this application, that the sixth and seventh disclosures and the eighth disclosure were capable of amounting to protected disclosures.

The tribunal then considered the causation question: whether it was pretty likely that the reason, or principal reason, for dismissal on 16 May 2024 was the making of protected disclosures. It recorded that the dismissal decision was taken by William Gardiner and that the respondent relied on conduct allegations including reviewing and photographing confidential information, unsafe conduct concerning the tower and the area by the fire exit, possible removal or destruction of records, and lateness and failure to carry out usual duties. The judge held that, if Mr Gardiner’s evidence were accepted at a final hearing, the respondent would likely be able to show that the reason for dismissal was conduct rather than protected disclosures.

Because there was a fundamental dispute of fact about the claimant’s conduct and the basis on which dismissal was said to have been justified, the tribunal concluded that the claimant had not shown a pretty good chance of succeeding on the protected disclosure dismissal claim. The application for interim relief was therefore refused. The tribunal also made case management orders extending the response deadline and listing a preliminary hearing for case management.