Sheikh Khalid Bin Saqr Al Qasimi v Robinson

An Employment Tribunal determining interim relief must make a prompt, summary assessment of whether the claimant has a pretty good chance of succeeding. Its reasons need give the essential gist only and should not determine the merits finally.

In a whistleblowing case, communications may, depending on the circumstances, be assessed as a chain when considering whether there is likely to have been a qualifying disclosure. The Tribunal must nevertheless apply the statutory requirements. In particular, it must address whether the worker believed, when making the disclosure, that it was in the public interest, and whether that belief was reasonable. Failure to determine a pleaded illegality issue also constitutes an error of law.

The Claimant, who had worked for the Respondent since 2007, alleged that she was dismissed because she had made protected disclosures concerning her employment status and the treatment of tax and National Insurance liabilities. She sought interim relief in her claim of automatic unfair dismissal under section 103A of the Employment Rights Act 1996.

The London Central Employment Tribunal granted interim relief and ordered that the contract continue pending determination or settlement of the unfair dismissal complaint. The Respondent appealed. He challenged the Tribunal’s treatment of the alleged disclosures, its approach to public interest and causation, and its failure to decide his contention that the contract was void for illegality.

1. Appeal allowed in part. The Employment Tribunal was entitled to conduct a summary, impressionistic assessment. It had to decide whether the Claimant was likely to succeed, meaning that she had a pretty good chance of success, rather than determine the claim finally. The Employment Appeal Tribunal should interfere only for legal error, perversity, reliance on irrelevant matters, or failure to consider relevant matters.

2. The Tribunal did not err in its approach to the alleged qualifying disclosures. Although each disclosure had to satisfy section 43B of the Employment Rights Act 1996, the appropriate approach depended on the circumstances. On this interim application, it was permissible to view the written communications as a chain concerning the Respondent’s treatment of staff employment and tax status. The Tribunal was not required to address separately every point in the ET3.

3. The Tribunal’s public-interest reasoning was unsafe. Applying Chesterton Global Ltd & Anor v Nurmohamed [2017] IRLR 837, it had to assess whether the Claimant believed, at the time of each disclosure, that it was in the public interest, and whether that belief was reasonable. Its reasons did not show that it had addressed the temporal, subjective belief requirement. Grounds 4 and 5 therefore succeeded.

4. The causation challenge failed. Read as a whole, the Tribunal’s reasons and the evidence it identified sufficiently explained its view that the Claimant was likely to establish that her disclosures were the reason for dismissal.

5. The Tribunal also erred by failing to determine the Respondent’s expressly raised illegality case. Its finding on employment status could not be treated as deciding that separate issue. Ground 7 succeeded.

• Employment Appeal Tribunal: Allowed the Respondent’s appeal on the public-interest and illegality grounds, while dismissing the challenges to the treatment of disclosures and causation.
• London Central Employment Tribunal: Granted interim relief and ordered continuation of the contract pending determination or settlement of the automatic unfair dismissal complaint.