Wollenberg v Global Gaming Ventures (Leeds) Ltd & Anor

On an application for interim relief for alleged protected-disclosure dismissal, the Employment Tribunal must make an urgent, broad assessment of whether the claim has a pretty good chance of succeeding. Its reasons may be short, but they must state the essential gist of why that assessment was made.

An appellate tribunal cannot cure an inadequately reasoned decision by undertaking its own factual assessment of the merits. Unless the result follows from the Employment Tribunal's findings and undisputed or indisputable facts, the case must be remitted.

The Claimant, formerly the Respondent company's part-time Executive Chairman, alleged that he had been summarily dismissed because he made protected disclosures. He brought a claim for automatic unfair dismissal under section 103A of the Employment Rights Act 1996 and sought interim relief under section 128.

The Employment Judge refused interim relief. The Claimant appealed, contending that the reasons did not adequately address his case that the disciplinary decision-maker knew of, and failed properly to engage with, his alleged disclosures. The central issue was whether the reasons sufficiently explained why the Claimant's section 103A claim was not likely to succeed.

1. Appeal allowed. The Employment Judge's refusal of interim relief was set aside and the application was remitted for a fresh hearing before a different Employment Judge.

2. Under sections 128 and 129 of the Employment Rights Act 1996, an interim-relief hearing is urgent and summary. The question is whether the employee's section 103A claim is likely to succeed. That requires a significantly higher prospect than a simple balance of probabilities: the employee must have a pretty good chance of success.

3. Reasons on such an application may be concise and should not pre-judge the final merits. They must nevertheless give the essential gist of the Employment Judge's reasoning. They must enable the parties to understand why the application succeeded or failed on the issues raised.

4. The reasons given did not meet that standard. Paragraph 15 expressed no conclusion. Paragraph 16 was obscure and did not explain how the alleged conflict in the appointment of the disciplinary officer bore on the decision. Paragraph 17 did not adequately engage with the Claimant's case. On its ordinary meaning, it also wrongly stated that there was no basis on which the Claimant's disclosures were before the disciplinary officer, although they were provided to him from the outset of his formal instructions.

5. The EAT could not dismiss the appeal by making its own assessment of the extensive material. That would require factual evaluation which, under Jafri, belongs to the Employment Tribunal unless the correct result follows from existing findings and undisputed or indisputable facts. Given the deficiencies in the original reasons, a different Employment Judge should determine the interim-relief application afresh. No view was expressed on its merits.

• Employment Appeal Tribunal: allowed the appeal, set aside the refusal of interim relief, and remitted the application to a different Employment Judge.
• Employment Tribunal, Watford: on 23 January 2018, refused the Claimant's application for interim relief under sections 128 and 129 of the Employment Rights Act 1996.