Factual disputes do not prevent interim relief in whistleblowing claims

Background

In Duffy v BXTR 3 Ltd t/a House of Gods, the claimant worked in the respondent's food and beverage team. He alleged that he made a protected disclosure to his manager concerning fire escape doors being left open and the resulting risks to the health, safety and welfare of guests and staff. He was dismissed three days later.

The claimant argued that he had been dismissed because of his protected disclosure and applied for interim relief. The employer disputed that any protected disclosure had been made and maintained that the decision to dismiss had already been taken before the alleged disclosure because the claimant was not meeting the required standards during his probationary period.

Interim relief is an exceptional remedy available in certain automatically unfair dismissal claims, including whistleblowing cases. Broadly, a claimant must demonstrate a "pretty good chance" of succeeding at the final hearing, which is a significantly higher threshold than showing that success is more likely than not.

The Employment Tribunal refused the application. It identified significant factual and credibility disputes, including whether a protected disclosure had been made and whether the decision to dismiss pre-dated it, and concluded that the claimant could not therefore demonstrate a pretty good chance of succeeding.

EAT decision

The EAT allowed the claimant's appeal.

Although the threshold for interim relief is deliberately high, the Tribunal had been wrong to treat the existence of factual disputes as determinative. It was still required to carry out a summary assessment of the evidence before it and form a view about the claimant's prospects of success.

The EAT also found that the Tribunal had failed adequately to address an important voice recording and transcript relied upon by the claimant. That evidence needed to be weighed as part of its assessment and its failure to do so meant that it had not given adequate reasons for its decision.

The EAT did not decide whether interim relief should be granted. Doing so would have required it to make its own factual assessment, so the application was remitted to the same Tribunal for reconsideration.

Learning points for employers

The decision does not lower the demanding threshold that claimants must meet to obtain interim relief. Indeed, the EAT endorsed recent guidance on interim relief applications recognising that, where an employer can identify an apparently good reason for dismissal unrelated to whistleblowing, a claimant will usually need clear evidence that this was not the real reason in order to demonstrate a "pretty good chance" of success.

However, employers should not assume that significant factual disputes will be enough to defeat an interim relief application. Tribunals must make a summary assessment of the available evidence, making contemporaneous evidence about the reason and timing of a dismissal particularly important where a dismissal follows closely after an alleged protected disclosure.

For more information or advice, please get in touch with Alice Mennell in our Employment team.