Parsons v Airplus International Ltd

On an application for interim relief for alleged whistleblowing dismissal, the tribunal must make a summary assessment of whether the claimant has a pretty good chance of succeeding. It must not determine the substantive claim or resolve factual and legal disputes that require a full hearing. Reasons need only state the essential gist of the assessment. A tribunal may refuse relief where the evidence on causation and separability requires fact-finding and evaluation at the final hearing, even though the claimant has a good arguable case.

The claimant was dismissed five weeks after beginning employment as the respondent’s Compliance Manager. She alleged that the reason or principal reason for dismissal was protected disclosures and sought interim relief under sections 128 and 129 of the Employment Rights Act 1996.

The Employment Judge found that the claimant had a good arguable case but not a pretty good chance of succeeding, and refused interim relief. The claimant appealed, alleging that the Judge had failed to address disclosures made the day before dismissal, had not resolved separability issues, and had failed to determine the merits.

The central issue was whether those matters disclosed an error of law in the Judge’s summary assessment of the prospects of the whistleblowing-dismissal claim.

1. Appeal dismissed. The Employment Judge made the correct inquiry on an interim-relief application: whether it appeared likely that the claimant would succeed on the substantive complaint. “Likely” required a pretty good chance of success, not merely a good arguable case.

2. The task is a summary assessment on the material then available. The Judge must not make a summary determination of the underlying claim. The reasons need only give the essential gist, because the assessment necessarily rests partly on impression and should not pre-judge the merits.

3. The omission expressly to address the alleged protected disclosures of 21 September 2015 was not an error of law. In context, those matters had not been advanced as strongly below; it was unclear whether they amounted to protected disclosures; and the respondent’s case was that the dismissal concerned the claimant’s manner at the meeting rather than its subject.

4. The Judge was entitled to conclude that causation and separability required fact-finding and analysis of the authorities at a full hearing. She was not required to resolve possible conflicts in the law of separability, or factual disputes, in the claimant’s favour at the interim stage. Her conclusion that the material was insufficiently clear-cut to justify relief was an assessment she was entitled to make.

• Employment Appeal Tribunal: appeal dismissed; the refusal of interim relief was upheld.
• Employment Tribunal: Employment Judge Lewis refused the claimant’s interim-relief application in a judgment with reasons sent on 16 October 2015.