Miss Y Rotaru v Dynamic Group Limited — 2020

Miss Rotaru applied for interim relief under sections 128 and 129 Employment Rights Act 1996 in relation to her allegation that she had been automatically unfairly dismissed for making a protected disclosure. The tribunal recorded that the respondent had not yet presented a response to the substantive claim, and that the underlying issue would be whether the reason or principal reason for dismissal was the protected disclosure or redundancy.

The tribunal found that the claimant's 8 June 2020 email, in which she said she did not feel comfortable working while on furlough and referred to HMRC coming down hard on anyone trying to defraud it of public funds, fell within the definition of a protected disclosure. It also recorded the claimant's further email on 9 June 2020 seeking confirmation of the company's position and stating she had not agreed contractually to any pay reduction.

The respondent sent a termination email at 14.11 on 9 June 2020 stating that the claimant's position, and possibly others, was being made redundant in the current climate. Mr Cirstean said the business had suffered a substantial reduction in workload since lockdown and that the claimant's accounts role was no longer required, which he said was the reason and only reason for termination. The tribunal accepted that the real dispute on causation required determination at a substantive hearing with oral evidence and cross-examination.

Applying section 129(1) ERA 1996 and the approach in Taplin v C Shippam Ltd [1978] ICR 1068, the tribunal held that the claimant had not shown a pretty good chance of success on the material then before it. It therefore refused interim relief and dismissed the application. The substantive protected-disclosure dismissal claim was not finally determined in this judgment.