EMPLOYMENT TRIBUNALS (SCOTLAND) Case No: 4105605/2024 Held at Aberdeen on July 2024 Employment Judge N M Hosie v Respondent — 2024

This hearing was for the claimant's application for interim relief against Bristow Helicopters Ltd. Mr Howarth did not attend because of ill-health. The tribunal considered the claim form, the claimant's written notes, and the respondent's written submissions and witness statements, and heard no oral evidence. It stated that it was making a broad assessment on the papers and was not making findings in fact.

The tribunal identified the relevant claim as an automatic unfair dismissal claim under s.103A Employment Rights Act 1996, based on an alleged protected disclosure. It said the claimant did not have two years' continuous service for an ordinary unfair dismissal claim. The alleged disclosure was a complaint of "ongoing bullying" made to Emma Lawson on 20 March 2024, initially anonymously and later identified by the claimant on 5 June 2024. The tribunal treated as a preliminary issue whether that complaint amounted to a protected disclosure within s.43B, including whether it fell within the statutory categories, whether it was in the public interest, and whether the claimant reasonably believed the disclosure.

Applying ss.128 to 132 of the Employment Rights Act 1996, and the authorities it cited, including Taplin v C Shippam Ltd and Ministry of Justice v Sarfraz, the tribunal said the test for interim relief was a high one: it had to appear likely that the full tribunal would find the claim succeeded. It considered that the respondent had a stateable argument that the complaint was a private employment dispute rather than a protected disclosure, and that the claimant would also need to prove that any disclosure was the reason for dismissal.

The tribunal noted that the claimant had been dismissed at a probationary review meeting, which was relevant because his performance was due to be assessed in any event. It recorded the respondent's evidence that the claimant's probationary performance had not been satisfactory and that this was the reason for dismissal. It also recorded that, on the respondent's evidence, Graham Hamilton, who made the dismissal decision, was unaware of the complaint relied upon, as was Sophie Smith. The tribunal concluded that the respondent had a stateable defence and that there was no "smoking gun". It therefore refused the application for interim relief. The case was left to proceed to the listed preliminary hearing on 30 August for case management purposes.