Mr Stephen Livesey v (1) The Japanese Garden at Cowden Castle st and 3 others — 2022

This was an urgent interim relief hearing on 2 February 2022 before Employment Judge Ian McPherson sitting alone. The claimant, Mr Stephen Livesey, said he had been dismissed on 11 January 2022 after making protected disclosures about health and safety matters at the Japanese Garden at Cowden Castle. He relied on alleged oral disclosures said to have been made to Sarah Reynolds and Rob Grindrod in December 2021 and January 2022, while the respondents denied that those disclosures had been made and said the dismissal was for performance reasons. No oral evidence was heard and the judge recorded that no findings in fact were made at the hearing.

The tribunal applied the section 128 and section 129 ERA 1996 interim relief test, including the requirement that it must appear likely that the claimant will succeed on the underlying section 103A claim, interpreted as a "pretty good chance" or significantly higher degree of likelihood. The judge referred to the authorities cited by counsel, including Taplin, Ministry of Justice v Sarfraz, Queensgate Investments LLP v Millet, Wollenberg and Robinson, and considered the section 43B requirements for protected disclosures, including disclosure of information and the public interest element. The judge noted that the claimant’s explanations of the alleged disclosures were confused and unclear, and that the issue of whether information had actually been disclosed remained in dispute.

The tribunal accepted the respondents’ case, as set out in witness statements and in Sara Stewart’s letter dated 25 January 2022, that the dismissal was wholly related to performance issues. The letter and the witness statements referred to concerns about the claimant’s work progress, daily work record, delays in repairs, maintenance tasks, and relations with staff. The judge considered the competing explanations for the dismissal and concluded that the claimant had not shown a sufficiently strong prospect of establishing that the reason or principal reason for dismissal was protected disclosure. The application for interim relief was therefore refused, and the case was continued for further procedure on 21 March 2022.