Mr R Moura de Araujo Faria v Lycamobile UK Limited PRELIMINARY HEARING Application for Interim Relief — 2020

This was a preliminary hearing on the claimant Mr R Moura de Araujo Faria's application for interim relief against Lycamobile UK Ltd after his dismissal on 5 May 2020. The tribunal applied the whistleblowing interim relief test under ss.128-130 ERA 1996, asking whether it appeared likely that the final tribunal would find that the claimant had made protected disclosures, had the requisite reasonable belief and public interest belief, and that those disclosures were the principal reason for dismissal. The judge cited Dandpat, Raja and Taplin when explaining that the claimant needed a significantly higher prospect of success than merely an arguable case.

The judge accepted that alleged disclosure 1 was no longer relied on because it fell within the legal advice privilege exception in s.43B(4). Of the remaining alleged disclosures, the judge considered that disclosures 4, 5, 6, 7, 8, 10, 11 and 12 were likely to be found to be qualifying and protected disclosures, although 8, 10 and 12 were treated as repetitions. Alleged disclosure 2 was likely to be a disclosure of information raising health and safety concerns but was not likely to be found to have been made in the public interest. Alleged disclosure 3 was not likely to be a disclosure of information or to show endangerment of health and safety, though it was likely to be in the public interest. Alleged disclosure 9, concerning French law, was not likely to be found to be a protected disclosure.

On causation, the tribunal said the central question was whether the protected disclosures were the reason or principal reason for dismissal. It noted the absence of any reason in the dismissal letter, the lack of any internal record explaining dismissal despite senior HR and legal involvement, the absence of process or appeal, and the close timing between the grievances, appeals and dismissal. Although the respondent said the real reason was covert recordings and loss of trust, the judge found that the evidence did not show any documented contemporaneous decision on that basis, and that the recordings were closely tied to the protected disclosures. The judge distinguished Bolton School v Evans on the facts and concluded that the tribunal at final hearing was likely to find that the making of the protected disclosures was the principal reason for dismissal.

The application therefore succeeded and the tribunal made a continuation of employment order under s.130 ERA 1996. The order required payment of £44,615.40 forthwith for salary from 6 May 2020 to 3 August 2020, £15,897.44 by 31 August 2020 for 4 August 2020 to 31 August 2020, and then £16,666.67 on or before the last working day of each month until determination or settlement, together with re-enrolment in the respondent's private medical insurance scheme. The judge noted that the final hearing should be expedited and indicated that the earliest four-day listing then available was 8 to 11 December 2020.