Claimant v Care Concern Group Limited — 2020

At a telephone hearing on 27 August 2020, with no oral evidence led, the tribunal considered Mr William Mukuma's application for interim relief under s128 ERA 1996 arising from his asserted automatic unfair dismissal claim under s103A. The respondent argued that the claimant had also referred to a TUPE-based unfair dismissal point under s104(4)(e), but the tribunal treated the s103A claim as the relevant basis for interim relief and noted that the s104 point was not relevant to the application.

Applying the 'likely' threshold discussed in Ministry of Justice v Sarfraz, Taplin v C Shippam Ltd and Hancock v Ter-Berg, the tribunal first addressed whether Mr Mukuma was likely to show that Care Concern Group Limited was his employer at the time of dismissal. It found that his contract was with Morrison Community Care (Duntocher) Propco Ltd, that the share purchase was made by Talis Care Ltd, and that the material about 'operational control' and 'acquired complete on-going operation' did not show a relevant transfer under TUPE.

The tribunal also found that it was not satisfied, on the material before it, that Mr Mukuma was likely to show that he made a protected disclosure on 20 July 2020 or that any decision-maker knew of such a disclosure. It was unclear how the conversation with the Care Inspectorate amounted to a disclosure of information tending to show a failure to comply with a legal obligation under s43B(b), and the claimant's own account of the reason for dismissal was inconsistent. The tribunal concluded that he was not likely to show that the principal reason for dismissal was a protected disclosure and therefore refused interim relief.