Mr D Ebekwe (Trade Union Representative) For the v Respondent — 2021

Ms Wilton-Oluwole applied for interim relief under sections 128 and 129 of the Employment Rights Act 1996 after being dismissed for gross misconduct in January 2021, the respondent having relied on serious bullying and harassment in breach of its Dignity at Work policy. The application was tied to her s.103A automatic unfair dismissal claim based on alleged protected disclosures. The judgment also notes that the wider case included race discrimination and breach of contract claims, but those were not determined at this hearing.

The Employment Judge set out the statutory test and the authorities of Taplin v C Shipham Ltd and Ministry of Justice v Sarfraz, including the need for a broad summary assessment and the requirement that it be likely that the claimant will ultimately establish that the dismissal was for a protected-disclosure reason. The judge also identified the elements that would need to be shown at final hearing: a disclosure of information, the claimant's reasonable belief that it tended to show one of the matters in s.43B, public interest, and that the disclosure was the reason or principal reason for dismissal. The judge stressed that no findings of fact were being made at this preliminary stage.

On the material available, the judge was not satisfied that the first disclosure was likely to be found to be a protected disclosure, saying it was far from clear that it conveyed information tending to show one of the relevant matters. The judge also rejected the submission that it had to be read together with a later email sent by a consultant to the claimant's representative, saying there was no obvious link and that they were months apart. Similar difficulties arose with the second and third grievance disclosures, which the judge said were not clearly protected disclosures and would require careful examination of the claimant's belief at the full hearing.

The judge was also not persuaded that it was likely the tribunal would find the dismissal was because of the protected disclosures. The judgment says the causal link was impossible to see on the evidence heard, there were apparent difficulties because the dismissing officer appeared to lack knowledge of the disclosures, and the later disclosures were made after the disciplinary process was already well under way. The application for interim relief was therefore refused, without prejudice to the outcome of the substantive claims at the final hearing.