Raja v The Secretary of State for Justice

Interim relief under Employment Rights Act 1996 ss.128–129 is not limited to disputes of a "clear and simple" factual nature. A tribunal must decide the application by applying the statutory test in s.129(1). The word "likely" in s.129(1) should be understood as requiring the applicant to show a "pretty good chance" of success, following [1978] IRLR 450. A judge may not add extra statutory requirements when deciding interim relief applications.

The appellant, a former prison officer, sought interim relief under Employment Rights Act 1996 ss.128–129 for dismissal allegedly related to protected disclosures and health and safety complaints. An Employment Judge at Reading refused the application on the basis that interim relief should be confined to "clear and simple" conflicts of fact. The appellant appealed to the Employment Appeal Tribunal. The EAT considered (1) whether the Employment Judge had erred by adding a non‑statutory requirement, (2) the legal meaning of "likely" in s.129(1), and (3) the appropriate disposal if error was found. The EAT allowed the appeal on the first point and remitted the application for rehearing by a different Employment Judge. The EAT followed [1978] IRLR 450 on the meaning of "likely".

(1) Overall disposition: the appeal is allowed in part. The Employment Judge's refusal of interim relief is set aside and the matter is remitted to the Reading Employment Tribunal to be heard by an Employment Judge other than Employment Judge Hill.

(2) Error of law: an Employment Judge erred by imposing an additional criterion that interim relief is confined to "clear and simple" factual disputes. Section 128 prescribes the eligibility for interim relief and the tribunal must decide the application under the statutory test in s.129(1). The judge must not add extra requirements beyond the statute (see paras [9], [13], [Decision]).

(3) Meaning of "likely" in s.129(1): the EAT followed Taplin v C. Shippam Ltd ([1978] IRLR 450) and held that "likely" requires the applicant to show a "pretty good chance" of success. This is a higher threshold than a mere "reasonable prospect" but does not require proof on the balance of probabilities. The court rejected submissions that a lower standard from other statutory contexts should be imported into s.129(1) (see paras [10]; [Issue 2]; [Decision]).

(4) Remittal: because there was misdirection and the EAT could not say the Employment Judge's conclusion was plainly and unarguably right notwithstanding the misdirection, the appropriate remedy was remittal rather than the EAT determining the application itself. The case is remitted for rehearing by a different Employment Judge (see paras on Dobie v Burns and the concluding paragraphs).

(5) Practical guidance: on an interim relief application the tribunal should hear submissions, consider the material evidenced to the extent necessary and apply the statutory test without importing extraneous glosses. If an Employment Judge has not engaged with relevant material this supports remittal.

• Employment Appeal Tribunal: Appeal from Reading Employment Tribunal. Appeal allowed in part; remitted to the Reading Employment Tribunal to be heard by a different Employment Judge (see judgment of HHJ Birtles, EAT).
• Employment Tribunal (Reading): Employment Judge Hill refused interim relief on 22 January 2009. That refusal was the subject of this appeal.
• Administrative step: Earlier procedural rulings included an initial refusal under EAT rules by HHJ Peter Clark and a restricted permission/order by HHJ McMullen QC limiting grounds (see seal dated 24 August 2009).