Dandpat v University of Bath & Ors

Interim relief applications are summary proceedings intended to preserve the applicant’s position pending a full hearing. They do not permit the tribunal to resolve substantial conflicts of evidence or make definitive findings about witness credibility. Where the papers disclose stark factual disputes, an employment tribunal may take a broad view and conclude that success is not sufficiently likely. Such a conclusion will not be perverse merely because the applicant has substantial evidence or may ultimately succeed at trial.

The appellant brought employment claims against the University of Bath and others, including claims concerning protected disclosures and constructive dismissal. He sought interim relief under section 128 of the Employment Rights Act 1996. The Employment Tribunal refused the application, and Underhill J, sitting as President of the Employment Appeal Tribunal, dismissed the appeal. Permission to appeal was refused on the papers and on a renewed application, which was reheard after the appellant received death threats from a member of the Civil Appeals Office.

A second application concerned refusal to adjourn a pre-hearing review. By the time of the rehearing, the relevant hearing had passed and had been postponed, so the appellant withdrew that application. The central issue was whether the Employment Tribunal’s refusal of interim relief was perverse.

The applications were refused.

1. Interim relief under section 128 of the Employment Rights Act 1996 is dealt with summarily. The procedure is intended to operate quickly and to preserve the applicant’s position pending determination of the substantive claim. It is not a substitute for a full evidential hearing.

2. At the interim stage, the tribunal is not expected to resolve conflicts of fact or determine which witnesses are truthful, accurate or reliable. It may consider the material broadly and decide whether the applicant is likely to succeed.

3. There were stark conflicts of evidence concerning the alleged treatment of the appellant, the recording of the disciplinary meeting and the reasons for the proposed termination. The Employment Tribunal could not reasonably be expected to resolve those conflicts on a summary application. Its conclusion that it could not say that the appellant was likely to succeed was reasonable and was far from perverse. That conclusion did not determine the eventual merits of the substantive claims.

4. The second application concerned a procedural decision relating to a hearing which had already passed and had subsequently been postponed. The issue was no longer live, and the appellant voluntarily withdrew that application.

• Court of Appeal (Civil Division): renewed applications for permission to appeal refused.
• Employment Appeal Tribunal: Underhill J dismissed the appeal against the Employment Tribunal’s refusal of interim relief.
• Employment Tribunal: application for interim relief refused on the basis that success in the protected-disclosure constructive-dismissal claim was not sufficiently likely.