N Hall v Paragon Finance PLC

On an interim-relief application for alleged whistleblowing dismissal, the Employment Tribunal must make a summary and impressionistic assessment of whether the claimant has a pretty good chance of succeeding at trial. It need give only the essential gist of its reasons and must not determine the merits finally.

A qualifying disclosure based on breach of a legal obligation requires more than an allegation of unethical conduct or breach of guidance. The source of the obligation must be identified, and the worker’s belief must be assessed in its context, including their knowledge and experience.

The Tribunal’s findings on the alleged disclosures could not stand because they misunderstood the parties’ cases. Its separate finding that causation was unlikely to be established was, however, permissible. Concerns about conduct and refusal to accept guidance could be separable from protected disclosures.

The claimant, an internal auditor, claimed that he had been automatically unfairly dismissed for making protected disclosures. He applied for interim relief under the Employment Rights Act 1996.

The Birmingham Employment Tribunal refused the application. It found that the claimant was unlikely to establish two alleged disclosures, but likely to establish a third. It nevertheless found that the third disclosure was unlikely to be the sole or principal reason for dismissal because of the respondent’s earlier concerns about the claimant’s conduct and willingness to accept guidance.

The claimant appealed the findings on the first two disclosures and causation. The respondent cross-appealed the finding concerning the third disclosure. The central issues were whether the Tribunal had properly addressed qualifying disclosure and whether its causation assessment was confined to concerns arising after the earlier disclosures.

1. Appeal dismissed; cross-appeal allowed. The Employment Tribunal’s refusal of interim relief was upheld because its conclusion that the claimant lacked a pretty good chance of establishing causation was a permissible summary assessment.

2. The Tribunal’s conclusions on all three alleged protected disclosures could not stand. In relation to the first two disclosures, the respondent’s case did not dispute that the claimant had raised information during the relevant audits. The material dispute was whether the communications were qualifying disclosures. The Tribunal therefore failed to engage with the actual issue and did not adequately explain its conclusions.

3. The collaborative context of an audit discussion was nevertheless potentially relevant. A worker must identify more than a breach of guidance or professional standards. Whether the worker genuinely and reasonably believed that information tended to show breach of a legal obligation depends on the context, including the worker’s knowledge and experience.

4. The Tribunal’s conclusion on the third disclosure was also unsustainable. It materially relied on an erroneous understanding that the regulator had advised the claimant that there had been a legal breach. The claimant’s case was only that the regulator advised what to do if he considered that there had been such a breach.

5. The causation conclusion was independent of those errors. The Tribunal had considered concerns about the claimant’s behaviour and unwillingness to accept guidance which extended back to January 2023 and pre-dated all three alleged disclosures. On an interim-relief application it was entitled to conclude that the claimant did not have the required likelihood of proving that dismissal was because of protected disclosures, rather than separable conduct associated with them. No further direction was required.

• Employment Appeal Tribunal: Appeal dismissed and cross-appeal allowed in [2024] EAT 181. The refusal of interim relief was upheld on causation.
• Employment Tribunal, Birmingham: Employment Judge Wedderspoon refused the claimant’s interim-relief application on 13 March 2024; judgment sent on 14 March 2024.