Appeal No. UKEAT/0023/16/JOJ

EMPLOYMENT APPEAL TRIBUNAL
FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8AE

	At the Tribunal
	On 24 February 2016
	Judgment handed down on 4 March 2016

Before
HIS HONOUR JUDGE SHANKS
(SITTING ALONE) 

MS L PARSONS	APPELLANT

AIRPLUS INTERNATIONAL LTD	RESPONDENT

Transcript of Proceedings

JUDGMENT

APPEARANCES

For the Appellant	MS LAYLA PARSONS
(The Appellant in Person)	
For the Respondent	MR STEFAN BROCHWICZ-LEWINSKI
(of Counsel)
DWF LLP Solicitors
1 Scott Place
2 Hardman Street
Manchester
M3 2AA

SUMMARY
UNFAIR DISMISSAL - Automatically unfair reasons

The Appellant claimed that she had been dismissed for “whistleblowing”.  She applied for interim relief under section 128 Employment Rights Act 1996.  The Employment Judge rejected the application saying that although she thought the Appellant had a good arguable case she could not say that she had a pretty good chance of success.

The Appellant complained that the Employment Judge did not refer in her Reasons to one aspect of the evidence which the Appellant said made her case strong, did not resolve various issues of fact and law and did not make any determination on the merits.  Given the nature of the Employment Judge’s task on an application for interim relief and the relatively limited obligation to give reasons, none of these points involved any error of law by the Employment Judge.

HIS HONOUR JUDGE SHANKS

Background
1.	The Claimant, Ms Parsons, started to work for Airplus International Ltd as Compliance Manager on 17 August 2015.  Within five weeks, on 22 September 2015, she was dismissed with immediate effect.  The reason given in her letter of dismissal was “cultural misfit”.  Airplus say that what lay behind this phrase was that she had behaved towards her colleagues in a way that was aggressive and inappropriate and they had been left feeling uncomfortable when dealing with her.

2.	Ms Parsons immediately presented a claim to the Employment Tribunal that she had been unfairly dismissed under section 103A of the Employment Rights Act 1996 (“ERA”) on the basis that the reason (or principal reason) for her dismissal was that she had made “protected disclosures” (i.e. that she was a “whistleblower”).  She applied to the Tribunal for interim relief under section 128 of the ERA and a hearing was arranged before Employment Judge Lewis on 13 October 2015.  

3.	By agreement the Employment Judge did not hear oral evidence.  She was presented with two witness statements from the Claimant and one each from Caroline Haywood and Dominik Bullwein from Airplus, a bundle of documents of 279 pages and oral submissions and authorities produced by counsel on both sides.  In a Judgment with Reasons sent out on 16 October 2015 the Judge decided that the Claimant had a “good arguable case” but that she could not say she had a “pretty good chance of success” and the application for interim relief was therefore refused.

4.	On 17 November 2015 Ms Parsons appealed to the EAT against that decision, seeking to rely on five grounds of appeal.  On 30 November 2015 Simler J rejected the appeal under Rule 3(7) of the EAT Rules.  The same day Ms Parsons made an application for an oral hearing under Rule 3(10).  That hearing took place on 20 January 2016.  HH Judge Hand QC allowed four of the original grounds of appeal to go to a Full Hearing and allowed the Claimant to introduce a new ground of appeal (ground 1A): that ground was that the Employment Judge had not considered or properly considered disclosures made on 21 September 2015 and their proximity to and connection with the dismissal the following day, which it was said may have tipped the balance in favour of the grant of interim relief.

5.	The appeal was listed before me on 24 February 2016.  By then the case was also listed to be heard by the Employment Tribunal at a Full Hearing on liability and remedies starting on 14 March 2016.  Because of that at the outset of the hearing I queried the utility of the appeal but I was persuaded nevertheless to go ahead and hear it on its merits.

The Legal Framework
6.	A “protected disclosure” includes a disclosure of information by an employee to her employer which, in the reasonable belief of the employee, is in the public interest and tends to show that a criminal offence has been committed or that someone has failed to comply with a legal obligation (see sections 43B and 43C ERA).  A dismissal whose reason or principal reason was that the employee made such a protected disclosure is automatically unfair under section 103A ERA and the normal two year qualifying period for bringing an unfair dismissal claim does not apply (see section 108(3)(ff)).

7.	Where a complaint is made under (among others) section 103A ERA the Claimant can apply for interim relief under section 128.  If on the hearing of that application “… it appears to the tribunal that it is likely that on determining the complaint …” the Tribunal will find in favour of the Claimant, the Tribunal must make an Order for interim relief (see section 129).  For many years it has been understood that in applying this provision the Tribunal must ask itself whether the Claimant has established that she has a “pretty good chance” of succeeding at the substantive hearing (words first used in Taplin v Shippam Ltd [1978] IRLR 450).  This interpretation is justified because if the employee satisfies the test the Tribunal must make an Order for interim relief and, if it does so, the employer is obliged to pay the employee pending the determination of the complaint and there is no provision for re-payment in the event that she ultimately fails on the merits.

8.	On hearing an application under section 128 the Employment Judge is required to make a summary assessment on the basis of the material then before her of whether the Claimant has a pretty good chance of succeeding on the relevant claim.  The Judge is not required (and would be wrong to attempt) to make a summary determination of the claim itself.  In giving reasons for her decision, it is sufficient for the Judge to indicate the “essential gist of her reasoning”: this is because the Judge is not making a final judgment and her decision will inevitably be based to an extent on impression and therefore not susceptible to detailed reasoning; and because, as far as possible, it is better not say anything which might pre-judge the final determination on the merits.

The Decision
9.	The Judge in this case set out the procedural background, reminded herself of the law in relation to interim relief and “whistleblowing” to which I refer above, referred to a number of authorities relating to the question of “separability” (the question of when a distinction can be drawn between a dismissal for making protected disclosures and a dismissal for related matters like the manner of making such disclosures) and then gave her conclusions at paragraphs 13 to 26.  She noted that a number of issues had been raised by the Claimant during the period of her employment (including in relation to company minutes and compliance decisions) and said that it was likely that some of those would meet the definition of “protected disclosures” in the ERA but she did not elaborate further on that because, she said, the application failed on the issue of causation. 

10.	In that connection the Judge considered three matters raised by the Claimant.  At paragraphs 16 to 21 she considered the evidence of the company’s general attitude to compliance from which the Claimant said an inference could be drawn on causation; she said the evidence pointed both ways and, at paragraph 21, that it would all need “ … to be weighed up by a tribunal.”  At paragraphs 22 to 24 she considered the manner and timing of the dismissal and the reason given; she made the point that employers are more likely to give no or inadequate reasons for a dismissal in the very early days of employment; she said there was nothing sufficiently striking in the chronology to indicate the Claimant was likely to succeed on her claim; she said that the reason given was ambiguous in that it could refer to the Claimant’s behaviour and manner or to a culture of keeping compliance issues off the record; and she ended by saying “Again, the full merits tribunal will need to weigh everything up.”  And at paragraph 25 she considered the point made by the Claimant that all the conduct complained of by the company (save for an alleged incident at an office party in Germany) related to the protected disclosures she relied on; the Judge said she could see there was a potential issue as to separability but that it would require “ … fact finding … and an analysis based on [the] cases … ” but that it was “… not a clear cut matter …” on which she felt she could at that stage say the Claimant was likely to succeed.

11.	The Judge concluded that taking everything together, although she thought the Claimant had a “good arguable case”, she could not say that she had a “pretty good chance of success” and the application therefore failed.

Ground 1A
12.	I consider first ground 1A which was the point that understandably appealed to Judge Hand on the Rule 3(10) Hearing. 

13.	The Claimant’s case was that at a meeting with Ms Haywood on 21 September 2015 she asked her whether minutes were kept by the company in relation to compliance decisions and said that it was an offence under the Companies Act 2006 not to keep minutes and that later she sent an email with a link to various sections in that Act and that these communications amounted to protected disclosures.  In her notes of the dismissal meeting on 22 September 2015 (which was attended by the Claimant, Ms Haywood, Mr Bullwein and a Ms Bijak from HR) Ms Haywood recorded that she had said to the Claimant that her dismissal was not a question of competence but the Claimant’s “… approach to work and [she, i.e. Ms Haywood] cited some examples (specifically the conversation they had the day before about lodging minutes)…”.  

14.	The Claimant said that the timing of the dismissal the very day after 21 September 2015 and Ms Haywood’s own note of what was said at the meeting on 22 September 2015 made her case on causation very strong and that this should have been considered and referred to by the Judge.  It is right to say that in the Judgment there is no specific reference to the meeting or disclosures on 21 September 2015 or any express consideration of this point and initially it seemed to me to have some force, as it did to Judge Hand.

15.	However, Mr Lewinski took me to a number of documents, including the full notes of the dismissal meeting by Ms Haywood and Mr Bullwein, a note by a Patsy Adjei of what she heard of the conversation on 21 September 2015, and the Claimant’s skeleton argument for the hearing of the interim relief application.  What emerged was that the events of 21 September 2015 were not relied on as strongly at the interim relief hearing as they are on appeal.  Nor was it entirely clear that what the Claimant said on that occasion necessarily amounted to a protected disclosure.  Further it was clear that from an early stage Airplus’s case was that it was the Claimant’s alleged manner and aggression at the meeting on 21 September 2015 that led to the dismissal and that the reference to “… the conversation … about lodging minutes” seen in its proper context may not have involved any acceptance that the topic of the conversation was the cause of the dismissal.  

16.	Seen in that context and bearing in mind the limited obligation to give reasons falling on a Judge hearing an interim relief application, I do not think that the omission to refer to this point indicates any kind of error of law by the Judge in this case.

The Other Grounds of Appeal
17.	In ground 1 the Claimant says that the Judge misdirected herself about the law relating to interim relief because (in effect) she should have resolved a legal issue about separability based on (possibly) conflicting authorities in favour of the Claimant and (I suppose) have reached the view that the Claimant was therefore likely to succeed on the complaint.  I do not think it is appropriate at this stage for me to attempt to resolve the conflicts (if any) in the authorities or to reach a final view on the law on separability in the context of protected disclosures.  Likewise it seems to me that the Judge’s approach of saying that detailed fact finding and an analysis of the case law would be required and that she could not say at this stage that the Claimant was likely to succeed on the point was entirely understandable and correct.

18.	Ground 2 complains (in effect) that the Judge failed to decide the case on the material she had and was wrong to say that matters were not clear cut or needed to be weighed.  As I have said above in my summary of the law, it is not for the Judge to decide the case but to assess the chances of the Claimant succeeding.  That is exactly what the Judge did; she cannot possibly be criticised for saying that matters were not sufficiently clear cut at that stage for her to have sufficient confidence in the eventual outcome to grant interim relief.

19.	Ground 3 complains about the Judge’s comment that in her experience employers were likely not to give reasons or adequate reasons when dismissing an employee at an early stage in her employment.  The Claimant submits that in the finance industry “whistleblowers are dismissed the fastest”.  These are matters of argument on the facts for the Judge to assess.  The point does not disclose any error of law.

20.	Ground 4 seems to me to be essentially the same as ground 2 and I reject it for the same reasons.

Disposal
21.	For all those reasons, I dismiss the appeal.

22.	In the circumstances it is unnecessary for me to decide the interesting and difficult questions which were canvassed at the hearing as to whether, in the event of the appeal succeeding, it would be appropriate for the EAT to decide the interim relief application itself or whether it should be remitted to the Employment Tribunal and, if so, at what stage it should be heard by the Tribunal and on what evidence.