Dandpat v The University of Bath & Ors

The Court of Appeal refused permission to appeal a decision of the Employment Appeal Tribunal which upheld an employment tribunal's refusal to grant interim relief. The application for interim relief was made under the Employment Rights Act 1996 in respect of an alleged unfair dismissal said to arise from protected disclosures (relying on section 103A and the interim relief regime in sections 128 and 129). The Court held that an employment tribunal is not obliged to hear oral evidence when determining an interim relief application and may decide such applications on written submissions and contemporaneous documents. The Court accepted the Employment Appeal Tribunal's conclusion that the tribunal had not shown an arguable error of law and that the claim did not show it was "likely" (in the Taplin sense of a "pretty good chance") that the dismissal was because of a protected disclosure.

Background and parties: The appellant, appearing in person, sought permission to appeal from an Employment Appeal Tribunal (EAT) order dated 10 November 2009. The dispute arose from an employment tribunal application for interim relief after the appellant resigned on 29 February 2009 and alleged unfair dismissal attributable to protected disclosures.

Nature of the application: The appellant sought interim relief under the Employment Rights Act 1996 (referred to in the judgment by reference to sections 128 and 129 and to section 103A as establishing unfair dismissal for protected disclosures). The interim order sought was continuation of the appellant's contract while permitting him to stay away from the employer's premises pending final determination.

Issues before the court:

• whether the employment tribunal erred in deciding the interim application on the basis of written submissions and documents without hearing oral evidence;
• whether the tribunal's conclusion that it was not "likely" that the dismissal was for having made a protected disclosure was legally erroneous; and
• whether the Court of Appeal should revisit the established meaning of "likely" in the Taplin test for interim relief.

Procedural posture: The Employment Tribunal refused interim relief. The EAT considered challenges to that refusal and concluded there was no arguable error of law. The appellant then applied to the Court of Appeal for permission to appeal the EAT's ruling.

Court's reasoning and subsidiary findings: The Court of Appeal observed that applications for interim relief are often decided from written submissions and contemporary documents; hearing oral evidence is not required as a rule and was a matter of tribunal case management. The tribunal had read and considered the appellant's written submissions and the contemporaneous material, and there was a proper basis for its finding that the claim did not have a "pretty good chance" of success. The Court accepted the EAT's reasoning that the Taplin formulation of "likely" (a "pretty good chance") had stood for decades and that the context of interim relief (possible irreversible prejudice to the respondent) supported a comparatively high threshold. The appellant did not show a real prospect of success on the point that the tribunal should have heard oral evidence and did not persuade the court that the Taplin test should be revisited in this case. The Court therefore refused permission to appeal.

Other relevant factual points: the respondent did not appear at the Court of Appeal hearing; the appellant produced extensive bundles and submissions; the tribunal considered the resignation letter and surrounding correspondence when deciding whether the resignation amounted to a dismissal for the purposes of protected disclosure protection.

Permission to appeal was refused and the application for permission to appeal is dismissed. The Court concluded there was no real prospect of success in establishing an error of law: the employment tribunal was entitled to decide the interim relief application on written submissions and contemporaneous documents without hearing oral evidence; the tribunal's conclusion that it was not "likely" that the dismissal was because of protected disclosures was open to it, and there was no basis to revisit the Taplin test.

On appeal from the Employment Appeal Tribunal (Underhill J sitting with Mr Norman and Mr Yeboah) decision dated 10 November 2009. The present decision is the Court of Appeal refusal of permission to appeal ([2010] EWCA Civ 305).