In Person For the v Co-op — 2022

The claimant applied for interim relief under s.128 ERA 1996 in support of an automatic unfair dismissal claim under s.103A ERA 1996, said to arise from protected disclosures. The tribunal directed itself to s.129(1) ERA 1996 and applied the "likely" test as explained in Taplin v Shippam Ltd and reaffirmed in Dandpat v The University of Bath, asking whether the claimant had shown a pretty good chance of succeeding at the substantive hearing.

The tribunal considered two alleged disclosures. The first was an undated grievance letter said to have been emailed on 18 October 2021, complaining that the respondent was in breach of health and safety and the Working Time Regulations 1998 because only two employees were working in the shop. On the limited material before it, the tribunal said it could not conclude that the claimant was likely to satisfy the requirements of s.43B ERA 1996, particularly as to reasonable belief and public interest.

The second alleged disclosure was an email sent to SPR on 18 November 2021, which repeated the earlier complaint and added an allegation that SD had asked the claimant to follow him in a chase of a shoplifter on 17 November in breach of health and safety. The respondent disputed the complaint and raised timing and credibility points. The tribunal said there were key factual disputes that could only be resolved at the final hearing, so it could not find it likely that the disclosure was qualifying.

On causation, the respondent's case was that the claimant was dismissed for not passing probation, and the tribunal referred to probationary review notes recording concerns about conduct and performance, including an "Unacceptable" assessment on the day of dismissal. It held those documents did not suggest a causal link between the alleged disclosures and the dismissal. The application for interim relief was therefore refused.