Simply Smile Manor House Ltd v Ter-Berg

On an application for interim relief under sections 128 and 129 of the Employment Rights Act 1996, the tribunal must apply the likely to succeed test to every disputed element of the unfair-dismissal complaint. This includes whether the claimant was an employee, whether there was a dismissal, and any other issue material to the complaint.

The test requires a pretty good chance of success. It does not require employee status or another preliminary issue to be finally determined before interim relief can be considered. Requiring conclusive preliminary determinations would undermine the statutory scheme for a speedy, provisional remedy that preserves the position pending the full hearing.

A dentist engaged under an associate agreement brought a protected-disclosure unfair-dismissal claim after the dental practice terminated the agreement. He also sought interim relief under sections 128 and 129 of the Employment Rights Act 1996.

The respondents disputed that he was an employee and sought a postponement so that employment status could first be finally determined at a preliminary hearing. The Employment Tribunal refused the postponement. Applying the likely-to-succeed test, it found that the claimant had a pretty good chance of establishing employee status and that protected disclosures were the reason or principal reason for termination. It ordered continuation payments.

The sole issue on appeal was whether the Tribunal could determine disputed employment status provisionally at the interim-relief hearing.

1. Appeal dismissed. The Employment Tribunal did not err by applying the likely-to-succeed test to disputed employment status when deciding the interim-relief application.
2. Section 128 of the Employment Rights Act 1996 confers the right to seek interim relief on an employee alleging dismissal for a proscribed reason. Where employee status is disputed, however, status is an issue within the unfair-dismissal complaint, rather than a jurisdictional matter that must first be conclusively determined.
3. Under section 129, the Tribunal must assess the likely outcome when it determines the complaint. The statutory language does not confine the likely-to-succeed test to the reason for dismissal. Applying that test to only one element would leave the treatment of other disputed elements uncertain and could produce unjust results.
4. A requirement for final preliminary findings on status, dismissal, time limits or similar issues would cause delay, require disclosure and evidence, and undermine the expedited and interim character of the regime. A challenge to employee status is not, without more, a special circumstance justifying postponement under section 128(5).
5. The proper safeguard is the high threshold of a pretty good chance of success, followed by final determination at the merits hearing. An experienced Tribunal can make the required summary assessment from the limited evidence available. The continuation order therefore stood.

• Employment Appeal Tribunal: dismissed the appeal and upheld the Employment Tribunal's interim-relief decision.
• Employment Tribunal: refused a postponement, found that the claimant was likely to establish employee status and protected-disclosure dismissal, and made continuation-payment orders.