Dandpat v The University of Bath & Ors

On an application for interim relief in a protected-disclosure unfair-dismissal claim, an employment tribunal may decide the application on written submissions and contemporary documents. It is not generally required to hear oral evidence or receive formal witness statements. That is a case-management decision, and an appellate court should interfere only for an error of law or an irrational conclusion. The statutory question is whether it is likely that the tribunal will ultimately find that the protected disclosure was the reason, or principal reason, for dismissal. The meaning of likely is context-specific. The high threshold for interim relief reflects the irreversible prejudice caused to an employer if the contract and remuneration must continue until the proceedings end.

Mr Dandpat sought permission to appeal from an order of the Employment Appeal Tribunal dated 10 November 2009. The EAT had upheld the refusal by HHJ Peters, at a preliminary hearing, of interim relief in proceedings concerning an alleged protected-disclosure dismissal.

The employment tribunal had considered written submissions, the resignation letter and surrounding correspondence. It concluded that the necessary connection between the resignation and the alleged protected disclosures was unlikely to be established at the final hearing. The proposed appeal concerned the tribunal’s failure to hear oral evidence, the treatment of the written material, and whether the statutory meaning of likely should be reconsidered.

The application for permission to appeal was refused. The proposed appeal had to raise a point of law with a real prospect of establishing an error of law.

1. Written material and oral evidence. The employment tribunal was entitled to determine the interim-relief application on written submissions, contemporary documents and the material placed before it. It was not required to hear oral evidence or receive formal witness statements. The Employment Appeal Tribunal correctly found no arguable error of law. Interim relief is preliminary in nature, and the tribunal’s choice of evidential procedure was a case-management decision attracting appellate restraint (see paras [8]-[16]).
2. Likelihood of establishing the protected-disclosure claim. Under sections 128 and 129 of the Employment Rights Act 1996, the relevant question was whether it was likely that the tribunal would ultimately find that the reason, or principal reason, for dismissal was the protected disclosure. The tribunal examined the resignation letter, correspondence and written submissions. Its conclusion that the claim did not have a sufficiently strong prospect of success was open to it. The appellant’s further contentions about the absence of a job to return to and the continuation of the contract had already been considered and disclosed no legal error (see paras [11]-[16]).
3. Appellate review. A perversity challenge had not been advanced before the EAT and could not found permission in this court. There was no basis for concluding that the tribunal acted unreasonably by relying on written material alone (see para [16]).
4. Meaning of likely. The court declined to revisit the approach in Taplin v Shippam Ltd [1978] IRLR 450, because the first issue was decisive of the permission application. It observed that the meaning of likely depends on statutory context, applying the contextual approach described by Lord Steyn in R (Daly) v Secretary of State for the Home Department [2001] 3 All ER 433. Section 12 of the Human Rights Act 1998 operated in a materially different context. The high threshold for employment interim relief was justified by the irreversible prejudice of requiring the employer to continue the contract and pay remuneration until proceedings ended (see paras [17]-[18]).

Order: application refused.

1. Court of Appeal (Civil Division): On 1 March 2010, refused permission to appeal.
2. Employment Appeal Tribunal: By order dated 10 November 2009, rejected the alleged errors of law and upheld the refusal of interim relief.
3. Employment Tribunal: At a preliminary hearing before HHJ Peters, refused the application for interim relief.