Mrs M Tuszowska v Jarmark Erdington Ltd (England and Wales : Interim Relief) -[2024] UKET 1306548/2024- (18 October 2024)

Key Facts

Issues

• The Tribunal assessed whether interim relief under Section 128 ERA was warranted by evaluating if it was 'likely' that the dismissal was primarily due to the Claimant making a qualifying protected disclosure under s103A ERA.
• The Tribunal concluded that the Respondent's stated reasons for dismissal (work ethic, behavior, and conduct) were unrelated to any protected disclosure, making the disclosure not the 'sole or principal reason' for termination under s103A ERA.
• The analysis determined if the Claimant's disclosure (about a colleague's alleged illegal status) satisfied the statutory criteria for a protected disclosure, including whether it was made in the public interest and revealed a legal obligation breach under s43B ERA.

Holdings

• Interim relief was refused because the Tribunal could not conclude that a qualifying disclosure was the principal reason for dismissal. The Respondent's stated reasons for termination (work ethic, behavior, and conduct issues) were unrelated to any disclosure, and no evidence was presented to show these claims were fabricated or pretextual.
• The Tribunal found it not likely that the Claimant's dismissal was due to a qualifying protected disclosure, as there was insufficient evidence that her complaint about her supervisor met the public interest criteria under s43B(1) ERA. The Claimant's disclosure regarding a colleague's alleged illegal status was not asserted as a whistleblowing claim in the ET1 form, and she did not demonstrate that the disclosure was in the public interest or the principal reason for dismissal.

Legal Principles

• The 'reasonable belief' test for protected disclosures involves a two-stage assessment: (1) the Claimant must subjectively believe the disclosure was in the public interest and (2) objectively have reasonable grounds for that belief, distinguishing between private disputes and public interest concerns.
• The Tribunal applied the criteria for interim relief under Section 128 and 129 of the Employment Rights Act 1996 (ERA), requiring the Claimant to demonstrate a 'pretty good chance' of success at the final hearing that the dismissal was due to a protected disclosure. This includes showing the disclosure was in the public interest and met the qualifying conditions of s43B(1) ERA.
• A 'protected disclosure' under s43A ERA must involve a qualifying disclosure (as defined in s43B ERA) made in the public interest, covering matters like criminal offences, legal obligation breaches, health/safety risks, environmental damage, or concealment of such issues.

Precedent Name

• Eiger Securities LLP v Korshunova
• Taplin v C Shippam Ltd
• Ministry of Justice v Sarfraz
• Dandpat v University of Bath
• His Highness Sheikh Khalid Bin Saqr Al Qasimi v Robinson
• Simply Smile Manor House Ltd v Ter-Berg
• Chesterton Global Ltd v Nurmohamed

Cited Statute

Judge Name

Passage Text

• 15. A 'pretty good chance' of success was interpreted in Sarfraz as meaning 'a significantly higher degree of likelihood than just more likely than not'. Underhill P stated that, 'in this context 'likely' does not mean simply 'more likely than not' – that is at least 51% - but connotes a significantly higher degree of likelihood' (para 16) and or 'something nearer to certainty than mere probability' (para 19).
• 26. ... I cannot conclude that it is likely that a Tribunal will conclude that that complaint was in the public interest. I cannot conclude that it is likely that a Tribunal will conclude that a qualifying disclosure was identified in the Claim Form or was made during the Claimant's employment.
• 1. It is not 'likely' that on determining the complaint to which the application relates the Tribunal will find that the reason or principal reason for the Claimant's dismissal is that specified in s103A Employment Rights Act 1996 ('ERA') namely a dismissal for making a public interest disclosure.