Ministry of Justice v Sarfraz

For interim relief in an alleged whistleblowing dismissal, “likely” requires a significantly higher degree of likelihood than a bare balance of probabilities. The applicant must show a pretty good chance that the final tribunal will find in his favour.

The statutory requirements must be considered separately. In particular, a worker’s genuine belief that a disclosure tends to show breach of a legal obligation is distinct from the requirement that the belief be reasonable. Failure to address reasonableness is a material error of law. Alleged unreasonable management conduct supports a qualifying disclosure only where it is likely to satisfy the relevant legal test, including the stringent requirements for breach of the implied term of trust and confidence or harassment.

The Claimant, employed by the Ministry of Justice, was summarily dismissed after making an extensive grievance concerning the conduct of management. He brought proceedings alleging automatic unfair dismissal under section 103A of the Employment Rights Act 1996 and applied for interim relief under sections 128 and 129.

An Employment Judge found that the statutory test was met and ordered interim relief. The Ministry appealed, arguing that the Judge had misdirected himself on the meaning of “likely” and had failed to consider whether the Claimant’s belief that the grievance disclosed breaches of legal obligations was reasonable. The central issues were the proper interim-relief threshold and whether the statutory requirements had been addressed separately.

1. Appeal allowed; application for interim relief dismissed.

2. Under section 129(1) of the Employment Rights Act 1996, the tribunal must assess whether it is likely that the final tribunal will find the relevant reason for dismissal. Following Taplin v C Shippam Limited [1978] ICR 1068, “likely” means substantially more than a 51 per cent chance. It requires a significantly higher degree of likelihood, described as a pretty good chance, although the assessment should not be expressed as a percentage.

3. The five matters requiring consideration were whether the Claimant made a disclosure; believed that it tended to show one of the matters in section 43B(1); held that belief reasonably; made the disclosure in good faith; and whether the disclosure was the principal reason for dismissal.

4. The Employment Judge had wrongly conflated the Claimant’s genuine belief with the separate question whether that belief was reasonable. The fact that the grievance investigation treated the complaints as genuinely felt did not establish reasonableness. The omission concerned an indispensable question and fatally undermined the decision.

5. The EAT reconsidered the application under section 35 of the Employment Tribunals Act 1996. Remittal was unnecessary because reasonableness could be assessed principally from the disclosures and contemporary documents, and interim-relief applications should be decided speedily.

6. It was not likely that the final tribunal would find the belief reasonable. The complaints principally alleged unreasonable management conduct. Such conduct could breach the implied term of trust and confidence only if, without reasonable and proper cause, it was liable seriously to damage or destroy the relationship of trust and confidence, applying Malik v Bank of Credit and Commerce International SA [1997] ICR 606. Harassment under section 1 of the Protection from Harassment Act 1997 likewise involved reasonableness. The evidence, investigations and documents did not make the necessary finding likely.

7. The EAT therefore did not need to determine the good-faith issue.

• Employment Appeal Tribunal: allowed the Ministry’s appeal from the Employment Judge’s order and dismissed the application for interim relief.
• Employment Tribunal: the Employment Judge, sitting alone, ordered interim relief after a hearing on 28 October 2010; the Judgment and Reasons were sent on 5 November 2010.