Simply Smile Manor House Ltd v Ter-Berg

It is a misconception that the "likely to succeed" threshold on an interim relief application applies only to the reason for dismissal. Instead, the Employment Tribunal must apply the same "likely to succeed" test to all matters relevant to the complaint of unfair dismissal for a proscribed reason. This includes contested issues of employment status, dismissal and other jurisdictional questions, which may be assessed on a summary basis at the interim relief stage.

The claimant alleged unfair dismissal for making protected disclosures and applied for interim relief under Employment Rights Act 1996 s.128. The Employment Tribunal applied the "likely to succeed" test in s.129 to the whole complaint, including the disputed issue of whether the claimant was an "employee". The employer appealed, arguing that the tribunal should have determined employee status conclusively before entertaining interim relief. The Employment Appeal Tribunal considered whether the LTS test applies only to reason for dismissal or to all elements of the complaint.

(1) The appeal is dismissed. The tribunal did not err in law in applying the "likely to succeed" test to all elements of the complaint at the interim relief hearing.

(2) The language of ss.128 and 129 of the Employment Rights Act 1996 requires the tribunal to assess whether it is likely that, on determination of the whole complaint, a proscribed reason for dismissal will be found. The tribunal may therefore consider other contested elements of the complaint when applying the LTS test.

(3) Requiring conclusive preliminary hearings on employee status or other jurisdictional issues before any interim relief hearing would subvert Parliament's intention for an expedited interim regime and would risk significant delay.

(4) The tribunal may make a summary assessment of issues such as employment status or whether there was a dismissal based on limited evidence. That summary assessment must meet the LTS threshold (a "pretty good chance" of success).

(5) Case management decisions (including whether to order a preliminary hearing) remain within the tribunal's discretion and do not undermine the correctness of an interim relief determination absent error of principle or perversity.

(6) Orders made below for continuation payments and periodic sums were justified by the tribunal's assessment that the claimant had a pretty good chance of succeeding on the complaint.

• Employment Appeal Tribunal – Appeal dismissed; President Choudhury (sitting alone) (25 July 2019).
• Employment Tribunal (Norwich) – Interim relief application allowed; order for continuation payments and monthly payments pending determination (first-instance interim relief hearing, reasons recorded in the judgment below).