Ms E Paton v Wernick Group (Holdings) Limited and 4 others — 2020

This was a remote hearing of the claimant’s application for interim relief in a protected-disclosure dismissal case. The tribunal applied the ss.128-129 ERA 1996 test as explained in Dandpat, Raja, Taplin and Ministry of Justice v Sarfraz, asking whether the claimant had a ‘pretty good chance of success’ on the elements needed for an automatic unfair dismissal claim under s.103A ERA 1996.

On the limited material before it, the tribunal accepted that the claimant was likely to establish that she made the February, March and 4 May 2020 disclosures largely as alleged and that the disclosures were made to the employer. It considered it likely that she would be found to have reasonably believed the disability-related Equality Act disclosures, and also the furlough and equal pay disclosures, tended to show breaches of legal obligation. It was not satisfied that she was likely to be found to have reasonably believed that the s.111A point involved a breach of legal obligation.

The tribunal also distinguished between the different groups of disclosures on the public interest question. It considered it just likely that the claimant would be found to have reasonably believed the disability-related disclosures were made in the public interest, taking account of her DWU role and the fact that the matters concerned co-workers. It did not consider that the furlough, equal pay, s.103A or s.111A points in the 4 May grievance were likely to satisfy the public interest requirement.

The application failed on the final causation issue. The judge was not able to say that the tribunal at the final hearing would likely find that any protected disclosure was the reason or principal reason for dismissal. The judgment records a live dispute about whether the dismissal was a genuine redundancy, notes that a redundancy process appears to have been underway by 21 or 22 April 2020, and says the 4 May grievance disclosures came too late to be likely to explain the dismissal. The judge also noted that the respondent’s section 105 ERA 1996 argument on redundancy was likely to be rejected for interim relief purposes, but that did not change the conclusion that the claimant had not shown the required likelihood of success. No findings of fact were made for the substantive claim, and the correct employer remained unresolved for later hearings.