In Person For the v Respondent — 2020

The claim concerned an application for interim relief following the Claimant’s dismissal on 27 January 2020. The Claimant relied on section 103A Employment Rights Act 1996, contending that his 10 May 2019 email and affidavit to the Head of Asylum Operations were protected disclosures and that they caused the dismissal. He also advanced an alternative case that, if the Respondent’s stated reason was accepted, the dismissal was because the Respondent believed he had spoken to the Guardian newspaper, and that any disclosure to the press would itself have been protected under section 43G.

The Tribunal applied the interim relief threshold from Taplin v C Shippam Limited and Wollenberg v Global Gaming Ventures, asking whether the Claimant had a "pretty good chance of success" on the whistleblowing dismissal claim. It found that he did have a pretty good chance of establishing that the 10 May email was a protected disclosure under section 43B: it contained information about alleged security and data protection failures, related to asylum processing and Dublin III removals, and the Tribunal accepted that the Claimant was likely to be able to show a reasonable belief that this tended to show failures to comply with legal obligations and was in the public interest.

The Tribunal did not, however, find that the Claimant had a pretty good chance of proving that the reason for dismissal was the disclosure itself. It accepted that the Respondent had investigated the matter and had witness evidence supporting its belief that the Claimant had leaked information to the Guardian. On that basis, the Tribunal found that the Claimant had not shown a pretty good chance of establishing that the Respondent’s stated reason was untrue and that the real reason was retaliation for the 10 May disclosure.

On the alternative case, the Tribunal found that the Claimant could not show a pretty good chance of proving that any disclosure to the newspaper met section 43G, in part because he did not know the identity of the person who spoke to the Guardian and therefore could not address the relevant statutory requirements. It also recorded that it was at best unclear whether section 103A protects dismissal where the employer mistakenly believes the employee made the protected disclosure. The application for interim relief was therefore dismissed.