Benney v. Department for Environment Food and Rural Affairs

For interim relief in an automatically unfair dismissal claim, the statutory requirement that it appear likely that the complaint will succeed demands more than a reasonable prospect or a bare 51% probability. The claimant must show a pretty good chance of success, although the tribunal need not be satisfied that success at trial is certain. The assessment is predictive and broad-brush. It is not a substitute for a full hearing, and evidence will ordinarily be incomplete or untested. An employment judge must engage with the merits and give reasons, but may express the conclusion in relatively bland terms where the competing issues are finely balanced.

The claimant sought interim relief under section 129 of the Employment Rights Act 1996 pending determination of his claim that he had been automatically unfairly dismissed for making protected disclosures under section 103A. The respondent contended that any dismissal would result from failure to comply with a reasonable and lawful management instruction.

The Employment Judge refused interim relief, finding substantial disputes about the evidence and concluding that it was not possible to say that the protected disclosure was likely to be the reason for dismissal. The claimant applied under rule 3(10) for permission to appeal, arguing that the judge had either avoided deciding the merits or applied too demanding an interpretation of the statutory test.

1. Application dismissed. The Employment Judge had not merely ducked the issue. He had considered the material placed before him and made a predictive assessment that the competing explanations for the proposed dismissal were finely balanced.
2. Section 129 of the Employment Rights Act 1996 requires a tribunal to be satisfied that it is likely that, at the final hearing, it will find that the dismissal was for the protected reason specified in section 103A. The approach in Taplin v Shippam [1978] ICR 1068 remains applicable. The required standard is higher than a reasonable prospect, a real possibility, or a bare 51% probability. It is conventionally expressed as a pretty good chance of success. The tribunal need not be satisfied that the claimant will succeed.
3. The statutory word is likely. Expressions such as pretty good chance and looks like a winner are explanatory rather than statutory formulations. The assessment must not be reduced to a mechanical percentage calculation.
4. An interim-relief application requires reasons, but it is necessarily conducted on a broad-brush basis. It is not a substitute for a trial. Oral evidence may be limited and, if heard, is unlikely to be fully tested. A conclusion stated in restrained terms may therefore be sufficient where the judge has evaluated the material and the issue is closely balanced.
5. Raja v Secretary of State for Justice [2010] UKEAT 0364_09_1502 confirms that an employment judge cannot avoid the merits by failing to consider the relevant material. That did not occur here. The application disclosed no reasonable prospect of establishing that the contrary construction of section 129 was arguable on appeal.

• Employment Tribunal, Reading: Employment Judge Byrne refused interim relief on 5 May 2010 under section 129 of the Employment Rights Act 1996.
• Employment Appeal Tribunal: The rule 3(10) application for permission to appeal was dismissed.