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Cite as: [2012] NIIT 3010_11IT, [2012] NIIT 03010_11IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 3010/11

CLAIMANT: Paul Keogh

RESPONDENT: Banbridge & District Citizens Advice Bureau

Certificate of Correction

Pursuant to Rule 37(1) of the Industrial Tribunals Rules of Procedure 2005 contained in Schedule 1 of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005

1. In Paragraph 4.3 of the decision, in the reference to the claimant’s letter dated 22 March 2012, it was stated:-

He concluded by urging the manager “to engage with me and my colleagues; to deal with skirmishes that have emerged, to work proactively to alleviate my stress and that of my colleagues, to look again at service capacity and priority and to help to engender within the workplace a feeling of mutual respect”.

I certify it should have stated, as set out below:-

He concluded by urging the manager “to engage with me and my colleagues; to deal with schisms that have emerged, to work proactively to alleviate my stress and that of my colleagues, to look again at service capacity and priority and to help to engender within the workplace a feeling of mutual respect”.

2. In Paragraph 4.9 of the decision it was stated:-

“ … in a letter to Mr Shanks dated 4 April 20122, he had refused in some detail … ”.

I certify, due to a clerical mistake (typographical error) it should have stated, as set out below:-

“ … in a letter to Mr Shanks dated 4 April 2011, he had referred in some detail … ”.

Chairman:

Certificate recorded in the Register and issued to the parties on:

THE INDUSTRIAL TRIBUNALS

CASE REF: 3010/11

CLAIMANT: Paul Keogh

RESPONDENT: Banbridge & District Citizens Advice Bureau

DECISION

The decision of the tribunal is that the claimant’s application for interim relief, pursuant to Article 163 of the Employment Rights (Northern Ireland) Order 1996 is refused. The claimant’s claim of unfair dismissal will therefore proceed to a substantive hearing on the merits.

Constitution of Tribunal:

Chairman (sitting alone): Mr N Drennan QC

Appearances:

The claimant appeared in person and was not represented.

The respondent was represented by Mr B Mulqueen, Barrister-at-Law, instructed by Worthingtons, Solicitors.

Reasons

1.1 The claimant presented to the tribunal on 19 December 2011 the above-entitled claim, in which he claimed, inter alia, that he had been unfairly dismissed on the grounds that he had a made a protected disclosure, pursuant to Article 134A of the Employment Rights (Northern Ireland) Order 1996 (‘the 1996 Order’) (a ‘whistle blowing’ claim/’public interest disclosure’ claim pursuant to the Public Interest Disclosure (Northern Ireland) Order 1998).

1.2 The claimant, in his said claim form, stated that his contract of employment with the respondent terminated on 13 December 2011 and that he also wished to make an application for interim relief pending determination of the complaint, pursuant to Article 163 - 164 of the 1996 Order. It was not disputed by the parties the claimant had made his application for interim relief in time and in accordance with the provisions of the said Article and Rule 18A of the Industrial Tribunals Rules of Procedure, contained in Schedule 1 of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005 (‘2005 Regulations’).

The application was listed for hearing, by agreement, following Case Management Discussions on 13 January 2012 and 17 January 2012, as set out in the Records of Proceedings of those hearings dated 17 January 2012 and 19 January 2012 respectively, to consider the claimant’s application under Article 163 - 164 of the 1996 Order, pending determination of the claimant’s claim of unfair dismissal by the tribunal.

1.3 The parties were notified by the tribunal, by letter dated 22 December 2011, that the claimant’s claim had been registered and allocated the above Case Reference Number and the respondent was required, if it wished to do so, to present to the tribunal a response by 19 January 2012. An order, by consent, was subsequently made at the Case Management Discussion on 13 January 2012 extending the time for the response to be entered by the respondent to the claimant’s claim until 1 March 2012.

1.4 It is necessary to set out, at the outset of this decision, that the claimant’s claim form itself amounted to in excess of 100 pages. At the hearing of this application for interim relief, the tribunal was presented, by the claimant, with four Lever Arch files, amounting to approximately 1,200 pages, which included a written submission of some 92 pages and four witness statements of some 74 pages. Whilst the industry and effort of the claimant has to be admired, not least after taking into account the short time available to him for the preparation of this hearing, I had to point out to the claimant that the production of such a considerable of documents would have been a matter of considerable concern to me, having regard to the terms of the overriding objective set out in Regulation 3 of the 2005 Regulations, if such a volume of documents had been presented for the substantive hearing. My concern was even greater since this was an application for interim relief. This is an issue that will require to be further addressed in Case Management Discussions in relation to any substantive hearing, in relation to this matter (see further Veitch v Red Sky Group Ltd [2010] NICA 39 and recent guidance given in relation to the contents of the bundles for hearing by Girvan LJ in the decision In Re: Loreto Grammar School’s Application [2012] NICA 1.)

The respondent also provided to the tribunal a bundle of documents amounting to approximately 429 pages; although I accept there was some considerable overlap with the documents contained in the claimant’s bundles. Given the timescales for making such an application and the requirement for the tribunal to list the application, as soon as reasonably practicable, and to only allow a postponement where special circumstances justify doing so, there was not the normal ability for the tribunal to give directions/orders for the hearing of such a case at a Case Management Discussion, in line with the guidance of the Court of Appeal in the above cases. However, having regard to the nature of the application for interim relief and the relevant test to be applied (see later), I reminded the parties of the requirement placed upon them, under Regulation 3(4) of the 2005 Regulations to assist the tribunal to further the overriding objective. I considered, by the production of such documentation in this case, as referred to above, there had been such a failure by the parties. However, I acknowledge that on the second day of the hearing, in response to the above matters, the claimant produced, for my assistance, a more concise submission of some six pages in a proper attempt, on his part, to get to the heart of the issues between the claimant and the respondent, for the purposes of his application for interim relief.

1.5 However, whilst recognising that the production of such a volume of documentation to the tribunal created additional difficulties for the tribunal in considering and determining this application, I was not satisfied that this would have been a reason, in itself, to refuse the application. In particular, it was held, on appeal, in the case of Raja v Secretary of State for Justice [2010] UKEAT/034/09, that the Employment Judge, at first instance, had erred in law in finding that such applications should be restricted to simple factual disputes and complicated long-running disputes were not suitable for this type of emergency Order; and that by doing so, the Employment Judge had added a requirement that had no statutory basis.

Although this was the decision of the Employment Appeal Tribunal, and was therefore not binding on this tribunal, albeit highly persuasive, I considered that it should be followed, in circumstances where the relevant legislative provisions in Great Britain and Northern Ireland are the same and there is no relevant authority from the Northern Ireland Court of Appeal in relation to this issue.

1.6 In the event, although both parties were invited to do so, if they considered it appropriate and necessary, neither party gave oral evidence. The claimant relied, in particular, on his said written submissions, which he expanded upon in the course of oral submissions, together with various references by him, in the course of those submissions, to documents contained in his bundles. He also referred, in support of his submissions, to the contents of the said witness statements contained in the bundles, which both parties agreed I could read, without formal proof, for the purposes of these proceedings and to give to them such weight as I considered appropriate and relevant, having regard to the issues to be determined by the tribunal in connection with this application. Mr Mulqueen, on behalf of the respondent, made oral submissions and also referred to various documents contained in the respondent’s bundle. Before determining this application, I read and gave careful consideration to all the above submissions, written and oral, the documents and witness statements to which I was referred, insofar as I considered it necessary and relevant in order to determine this application. At the Case Management Discussions, referred to previously, and before the commencement of this hearing, I sought to ascertain whether, having regard to the terms of the overriding objective, it would be possible, rather than the claimant proceeding with his application for interim relief, to have an early substantive hearing of all issues, the subject-matter of his claim. For reasons, which I understand and accept, neither party considered, in the circumstances, that this was a viable and practical option since the claimant himself, in addition to the above-entitled claim, had two earlier claims against the respondent (and others) arising out of his employment with the respondent; and he further informed me he intended to issue new proceedings against the respondent, in the very near future, in relation to alleged actions by the respondent, since the termination of his employment. In addition, two of the witnesses, whose witness statements I have referred to above, had also brought claims to the tribunal. All these claims are at an early stage, with some responses not yet due, and these claims will then be required to be the subject of detailed case-management, including consideration of whether Orders for Consolidation and/or further interlocutory orders are required.

Further, all these other claims raised, inter alia, claims of public interest disclosure arising out of employment with the respondent.

2. Relevant law

2.1 Article 163 of the 1996 Order provides as follows:-

“(1) An employee who presents a complaint to an industrial tribunal –

(a) that he has been unfairly dismissed by his employer, and

(b) that the reason (or if more than one, the principle reason) for the dismissal is one of those specified in Article … 134A

may apply to the tribunal for interim relief.

(2) The tribunal shall not entertain an application for interim relief unless it is presented to the tribunal before the end of the period of seven days immediately following the effective date of termination (whether or before, on or after that date).”

Article 134A of the 1996 Order provides as follows:-

“An employee who is dismissed shall be regarded for the purposes of this Part is unfairly dismissed if the reason (or if more than one, the principal reason) for the dismissal is that the employee made a protected disclosure.”

2.2 The 1996 Order provides, insofar as relevant, as follows:-

Meaning of ‘protected disclosure’:-

Article 67A –

In this Order a ‘protected disclosure’ means a qualifying disclosure (as defined by Article 67B) which is made by a worker in accordance with any of Article 67C to 67H.

Disclosures qualifying for protection:-

Article 67B (1)

In this Part a ‘qualifying disclosure’ means any disclosure of information which, in the reasonable belief of the worker making the disclosure, tends to show one or more of the following –

…

(b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject;

…

(d) that the health or safety of any individual has been, is being or likely to be endangered,

…

Disclosure to employer or other responsible person:-

Article 67C –

(1) A qualifying disclosure is made in accordance with this Article if the worker makes the disclosure in good faith –

(a) to his employer,

…

2.3 Procedure on hearing of application of making of Order

Article 164 of the 1996 Order provides as follows:-

(1) This Article applies where, on hearing an employee’s application for interim relief, it appears to the tribunal that it is likely that on determining the complaint to which the application relates the tribunal will find that the reason (or, if more than one, the principle reason) for his dismissal is one of those specified in … Article 134A …

(2) The tribunal shall announce its findings and explain to both parties (if present) –

(a) what powers the tribunal may exercise on the application, and

(b) in what circumstances it will exercise them.

(3) The tribunal shall ask the employer (if present) whether he is willing, pending the determination or settlement of the complaint –

(a) to reinstate the employee (that is, to treat him in all respects as if he had not been dismissed), or

(b) if not, to re-engage him on another job on terms and conditions not less favourable than those which would have been applicable to him if he had not been dismissed.

(4) For the purposes of Paragraph (3)(b) ‘terms and conditions not less favourable than those which would have been applicable to him if he had not been dismissed’ means, as regards seniority, pension rights and other similar rights, that the period prior to the dismissal should be regarded as continuous with his employment following the dismissal.

(5) If the employer states that he is willing to reinstate the employee, the tribunal shall make an Order to that effect.

(6) If the employer –

(a) states that he is willing to re-engage the employee in another job, and

(b) specifies the terms and conditions on which he is willing to do so, the tribunal shall ask the employee whether he is willing to accept the job on those terms and conditions.

(7) If the employee is willing to accept the job on those terms and conditions, the tribunal shall make an Order to that effect.

(8) If the employee is not willing to accept the job on those terms and conditions –

(a) where the tribunal is of the opinion that the refusal is reasonable, the tribunal shall make an Order for the continuation of his contract of employment, and

(b) otherwise, the tribunal shall make no Order.

(9) If on the hearing of an application for interim relief the employer –

(a) fails to attend before the tribunal, or

(b) states that he is unwilling either or reinstate or re-engage the employee as mentioned in Paragraph (3),

The tribunal shall make an Order for the continuation of the employee’s contract of employment.

Order for continuation of contract of employment

Article 165 –

(1) An Order under Article 164 for the continuation of a contract of employment is an Order that the contract of employment continue in force –

(a) for the purposes of pay or any other benefit derived from the employment, seniority, pension rights and other similar matters, and

(b) for the purposes of determining for any purpose the period for which the employee has been continuously employed,

from the date of its termination (whether before or after the making of the Order), until the determination or settlement of the complaint.

(2) Where the Tribunal makes such an Order it shall specify in the Order the amount which is to be paid by the employer to the employee by way of pay in respect of each normal pay period, or part of any such period, falling between the date of dismissal and the determination or settlement of the complaint.

…

3.1 The above legislative provisions have been the subject of interpretation in a number of decisions of the Employment Appeal Tribunal and also the Court of Appeal in England and Wales. Again, such decisions are not binding on this tribunal but are highly persuasive; in particular, in the circumstances where the legislative provisions, both in Northern Ireland and Great Britain, are the same and there are no reported relevant decisions of the Northern Ireland Court of Appeal. In the circumstances, I decided to follow these decisions, as set out below, insofar as relevant for the determination of this application.

3.2 As set out in Article 164(1) of the 1996 Order, the test for interim relief is whether ‘it appears’ [tribunal’s emphasis] to the tribunal that it is likely [tribunal’s emphasis] that on determining the complaint the tribunal will find the protected disclosures were the reason or the principle reason for dismissal. I note that Article 164(1) uses the phrase ‘it appears’ rather than a phrase which would denote a greater degree of certainty. As set out in the case of Parkins v Sodexho Ltd [2002] IRLR 109 (Paragraphs 21 – 25 of the judgment), it is apparent the task of the tribunal is to make a broad assessment on the merits at an early stage on the basis of the material put before it, rather than to make a final judgment on the evidence. Indeed, I make it clear that, in this decision, I have reached no final judgment on any issue, the subject-matter of these proceedings. These issues will require to be finally determined at a substantive hearing.

There has been considerable case law in relation to the relevant test to be applied by the tribunal arising from the use of the word ‘likely’ in Article 164(1) of the 1996 Order. In Taplin v C Shippam Ltd [1978] IRLR 1068, the Employment Appeal Tribunal considered the approach to the test for interim relief and concluded it was necessary for the claimant to show he/she has a ‘pretty good chance of succeeding’, not merely that he/she could possibly win. The above test has now been approved in a series of recent decisions of the Employment Appeal Tribunal (see further Raja v Secretary of State for Justice [2010] UKEAT/364/09; Dandpat v University of Bath [2010] UKEAT/408/09 and Ministry of Justice v Sarfraz [2011] IRLR 562). In the Northern Ireland context, the decision in Dandpat is of the most interest and relevance, since it expressly addressed and rejected a submission that Taplin should be re-visited, following the decision of the House of Lords in SCA Packaging Ltd v Boyle & Another [2009] ICR 1056, which was an appeal from the Northern Ireland Court of Appeal in a disability discrimination claim. In the Boyle case, the House of Lords construed the term ‘likely’ in Paragraph 6(1) of Schedule 1 to the Disability Discrimination Act 1995 in a way which set a much lower hurdle than the test explained in Taplin, as referred to above. In deciding to follow the higher hurdle set out in Taplin, in relation to an application for interim relief, the Employment Appeal Tribunal in Dandpat noted that in more than one of the speeches of their Lordships in the House of Lords in the Boyle case, the point was made very clearly that the word ‘likely’ is one which has different shades of meaning in different contexts. As Lord Hope stated:-

“Correct meaning of the term in one statute cannot therefore be taken as a guide, without more, to its meaning in another statute.”

Taplin has now been recognised as ‘good law’ for over 30 years and the Employment Appeal Tribunal in Dandpat also recognised there were:-

“Good reasons of policy for setting the test comparatively high … in the case of applications for interim relief. If relief is granted the respondent is irretrievably prejudiced because he is obliged to treat the contract as continuing, and pay the claimant, until the conclusion of proceedings : that is not a consequence that should be imposed lightly … .”

In the more recent decision in the case of Sarfaz, Mr Justice Underhill, the then President of the Employment Appeal Tribunal, again decided that it was not appropriate to re-visit the test in Taplin and confirmed that ‘likely’ denotes something nearer to certainty than merely probability (see Paragraphs 17 – 19 of his judgment).

Although there has been some criticisms of the test, as set out in Taplin, and suggestions that a lower hurdle should be applied (see further Harvey on Industrial Relations and Employment Law at Division N1, Paragraph 615 – 615/07), I came to the conclusion, in light of the above authorities that the test, as set out in Taplin, of ‘pretty good chance of succeeding’ should be followed by me in considering this application for interim relief by the claimant. In fairness to the claimant, it must be noted that he did not seriously try to suggest otherwise.

3.3 Again, there was no dispute between the parties in relation to the proper approach to the burden of proof in the context of a claim pursuant to Article 134A of the 1996 Order (dismissal on the ground that the employee has made a protected disclosure), which was set out in the decision of the Court of Appeal in England and Wales in Kuzel v Roche Products Ltd [2008] IRLR 530, namely:-

“(1) Has the claimant shown that there is a real issue as to whether the reason put forward by the respondent was not the true reason?

(2) If so, has the employer proved his reason for dismissal?

(3) If not, has the employer disproved the [Article 134A] reason advanced by the claimant?

(4) If not, dismissal is for the [Article 134A] reason.”

(See further Paragraph 3.7 of this decision.)

3.4 In making this application for interim relief, the claimant contended that he had made a protected disclosure, being a qualifying disclosure as defined by Article 67B of the 1996 Order. In particular, he contended that he had made a qualifying disclosure, pursuant to Article 67B(1) of the 1996 Order, which in his reasonable belief tended to show:-

“ …

(b) that a person has failed, is failing or is to likely to fail to comply with any legal obligation to which he is subject;

…

(d) that the health or safety of any individual has been, is being or is likely to be in danger.”

Again, there has been considerable case law in relation to the proper interpretation of the said Article.

Firstly, to qualify for protection, a worker must make a ‘disclosure’ of ‘information’ that he or she reasonably believes tends to show one or more of the matters sent out in Article 67B(1) of the 1996 Order.

In the case of Cavendish Monroe Professional Risks Management Ltd v Geduld [2009] UKEAT/0195/09 the Employment Appeal Tribunal (Slade J) confirmed that to make a protected disclosure it was necessary to disclose information about a situation, ie by conveying the facts. It was not enough to make an allegation. The Employment Appeal Tribunal illustrated the distinction by hypothetical examples in a hospital scenario. To say “the wards have not been cleaned for the past two weeks”, in the judgment of the Employment Appeal Tribunal, disclosed information. Whereas to say, “you are not complying with Health & Safety legislation;” in the judgment of the Employment Appeal Tribunal was an allegation.

Therefore the making of an allegation would not be ‘information’ for the purposes of the 1996 Order. Further, the Employment Appeal Tribunal in Cavendish made a distinction between ‘disclosing’ and ‘communicating’ information, even though a disclosure can be made to a person already aware of the information. On the facts of the Cavendish case, it was held the common scenario of a letter from the claimant’s solicitor to the respondent complaining about his treatment – and provoking his dismissal – did not contain a disclosure and therefore was not a protected disclosure.

In Cavendish (see Paragraph 25) it was suggested an assertion of a breach of contract, for example, in a solicitor’s letter may not be a protected disclosure – merely a statement of the employee’s position not a disclosure of information.

Cavendish has been applied in the case of Goode v Marks & Spencer PLc [UKEAT/0442/09], in which a document and oral exchange formed the basis of an alleged disclosure about proposals by the respondent to change the respondent’s discretionary enhanced redundancy terms. The claimant had told his line manager that he thought the proposals were ‘disgusting’ and asked him what he thought and he also wrote a letter to The Times newspaper about the proposals. Applying the reasoning in Cavendish, to the oral statement, the Employment Appeal Tribunal found that the Employment Tribunal was entitled to conclude that, what was disclosed to the line manager, was merely a statement of the claimant’s state of mind, namely that he was ‘disgusted’ with the proposals. Such an expression of opinion about the proposal did not amount to the conveying of information which could form the basis of any reasonable belief such as to make it a qualifying disclosure. In relation to the letter to The Times, the Employment Appeal Tribunal found that, what was disclosed to The Times by way of information, could reasonably be believed to have a tendency to show that the respondent was likely to comply with a legal obligation. The only disclosure was that the respondent wished to discuss proposals relating to the redundancy scheme. Both the Cavendish and Goode cases show that it is necessary for a tribunal, in determining any such whistle blowing claim to extract the ‘information’ (ie the ‘facts’) from any written or oral statement alleged to be a protected disclosure.

Having done that, it is then necessary for the tribunal to consider whether the employee had a reasonable belief that those facts tended to show one or more of the matters set out in Article 67B(1) of the 1996 Order. In determining whether the worker has a reasonable belief, it is not necessary for the information itself to be actually true. A disclosure may be a qualifying disclosure, even if it subsequently transpires that the information disclosed was incorrect (see further Darnton v University of Surrey [2003] IRLR 133). In that case, the allegations relied upon by the claimant were not factually correct, but the Employment Appeal Tribunal confirmed that the proper test to be applied is whether or not the employee had a reasonable belief at the time of making the relevant allegations; albeit the factual accuracy of the allegations may be an important tool in determining whether or not the employee had the necessary reasonable belief, which would involve an assessment of the individual’s state of mind based upon the facts as understood by him at the time. As confirmed in Harvey on Industrial Relations and Employment Law, Division C111, D7:-

“It is also important to note that the statutory test is a subjective one. This is because the [Order] states there must be a reasonable belief of the worker making the disclosure. It follows that the individual characteristics of the worker need to be taken into account and the relevant test is not whether a hypothetical reasonable worker could have held such a reasonable belief.”

In Babula v Waltham Forest College [2007] EWCA Civ 174 it was confirmed that it was not necessary to have a reasonable belief that the information disclosed actually established a relevant failure. It was sufficient if it tended to show a relevant failure; and further that the test of belief is a subjective one, while the issue of whether the ‘belief’ is ‘reasonable’ is objective.

3.5 In this context of this case, it was also necessary to consider what is meant by:-

“that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject”;

as set out in Article 67B(1)(b), and which was relied upon, inter alia, by the claimant in this particular case. In particular, there has been considerable discussion in the legal authorities in relation to what is meant by ‘a legal obligation’. On the face of it, a provision dealing with a failure to comply with legal obligations is, subject to any relevant legal authority, a provision of particularly wide ambit.

The issue relating to the scope of what may constitute a ‘legal obligation’ was considered in the case of Parkins v Sodexho Ltd [2002] IRLR 109, Altman J held that the term ‘legal obligation’ was wide enough to cover obligations under the claimant’s contract of employment. He held (Paragraphs 15 and 16 of his judgment) that:-

“It is obviously not sufficient under [Article 67B] that there should simply be a breach of contract but what has to be shown is first a breach of the employment contract as being a breach of a legal obligation under that contract. Secondly, there must be a reasonable belief that this has, is or is likely to happen on the part of the worker. Thirdly, there must be a disclosure of that which is alleged to be a reason for dismissal. In other words, where it is a breach of the contract of employment, the worker is bound to make his case on the basis that the reason for dismissal is that he has complained that his employer has broken the contract of employment.

Subject to that as being the necessary basis for the whole complaint, under the protection from protected disclosures, we can see no real basis for excluding a legal obligation which arises from the contract of employment from any other form of legal obligation. It seems to us that it falls within the terms of the Act. It is a very broadly drawn provision.”

There has been criticism over the years of the said decision, and, in particular, that it appeared to depart from the original aim of the legislation which was to protect disclosures in the public interest and it was not intended to deal with what were internal employment disputes. However, in that context, it has to be noted that, as seen in Cavendish and Goode, the disclosure must be of ‘information’; and an allegation against an employer, or a simple expression of dissatisfaction by the employee, will not be sufficient to establish that there has been a qualifying disclosure. Recently, the present coalition Government has indicated that it may wish to, as it put it, “close the loophole” in whistle blowing law whereby a complaint about a breach of contract of employment can count as qualifying disclosure. However, I am satisfied, until there is such a change in statutory provision, the decision in Parkins v Sodexho remains good law and is required to be followed by tribunals. In Odong v Chubb Security Personnel [UKEAT/819/02] the Employment Appeal Tribunal applied Parkins v Sodexho, where an employee had refused to carry out what he considered to be an unlawful or unauthorised instruction. It was found that the instruction potentially breached the claimant’s contract of employment and therefore was held to be a breach of a legal obligation. In Fincham v HM Prison Service [UKEAT/0925/01] the claimant complained to her employer that she was being harassed by other members of staff. She contended that these tended to show a breach of the implied trust and confidence terms in her contract of employment. The Employment Tribunal decided it was not able to look at the various disclosures collectively to determine whether, taken together, they tended to show a breach of a legal obligation. It decided that none of the disclosures individually tended to show such a breach, on the basis that an employer could not be taken to have acted in breach of contract every time one employee behaved badly to another. This was upheld by the Employment Appeal Tribunal. However, it emphasised, at Paragraph 33 of the judgment, that, whilst there could be a series of acts that collectively gave rise to a breach of the trust and confidence term:-

“ … there must in our view be some disclosure which actually identifies, albeit not in strict legal language, the breach of legal obligation on which the employers are relying.”

Therefore, applying the ruling in Parkins v Sodexho, the Employment Appeal Tribunal explicitly accepted that, in principle, a breach of the implied term of trust and confidence could fall within [Article 67B(1)(b)]; albeit on the facts of the case the Employment Appeal Tribunal concluded that the employee’s complaint about the conduct of other employees did not of itself tend to show a failure to comply with the implied term of trust and confidence. (See further Douglas v Birmingham City Council [UKEAT/0533/05 – where it was confirmed a breach of trust and confidence could attract the protection of [Article 67B(1)(b)].)

As stated previously, the claimant not only relied on Article 67B(1)(b) but also was relying on Article 67B(1)(d) of the 1996 Order:-

“That the health or safety of any individual has been, is being or likely to be endangered.”

In Fincham, the Employment Appeal Tribunal accepted that there was a qualifying disclosure as a result of Ms Fincham having complained that she was under pressure and under stress. The Employment Appeal Tribunal considered that this could not be anything other than a statement that her health and safety was being or at least was likely to be endangered. The tribunal therefore accepted that, subject to the reasonable belief test, it was sufficient that the relevant failure was identifiable from the information disclosed, notwithstanding that the particular failure (in this case her health and safety was endangered) was not mentioned in express terms.

3.6 Under Article 67C(1) of the 1996 Order, as stated previously, a qualifying disclosure requires the disclosure to be made in good faith to his employer. The leading authority on the good faith requirement is the decision of the Court of Appeal in England and Wales in the case of Street v Derbyshire Unemployed Workers Centre [2005] ICR 97. In that case, the claimant, who had worked as an administrator for the respondent, made a series of allegations of impropriety against the manager of the Centre. An internal investigation concluded that her complaints were unfounded. Following disciplinary proceedings, the claimant was summarily dismissed for gross misconduct on the basis of her ‘unfounded and libellous’ allegation and her refusal to co-operate with the investigation. The claimant brought a claim maintaining that she was entitled to be regarded as unlawfully dismissed under [Article 134A]. The Court of Appeal rejected the suggestion that ‘good faith’ meant nothing more than ‘honestly’ or ‘with honest intention’.

As set out in Whistle Blowing Law & Practice, John Bowers, Paragraph 4.04 (2007 Edition) it was stated:-

“The Court of Appeal rejected a submission that ‘good faith’ meant nothing more than ‘honestly’ or ‘with honest intention’. Rather the Court of Appeal held that, in context, good faith focuses on the motive of the person making the disclosure, so that it is open to a tribunal to find that a disclosure was not made in good faith, it was made for some ulterior purpose, being a purpose other than acting in the public interest. Second, however, the Court of Appeal accepted that a case of mixed motives is not to be denied because there was some ulterior motivation, unless that was the dominant or the predominant purpose of the disclosure”

Wall LJ at Paragraph 73 of the judgment stated:-

“I can see no more satisfactory way of reaching such a conclusion (that an applicant is not acting in good faith) than by finding that the applicant was not acting in good faith because his or her predominant motivation for disclosing information was not directed to remedying the wrongs identified in [Article 67B], but was an ulterior motive unrelated to the statutory objectives.”

In Bachnak v Merging Markets Partnership (Europe) Ltd [UKEAT/0288/05] an employee was found to have made disclosures primarily to strengthen his position in negotiations with the employer and to put pressure on the employer not to dismiss him. HHJ Clark held, in the Employment Appeal Tribunal, that the burden lay on the respondent to prove that the claimant acted in bad faith. Also he held that, where as on the facts of Bachnak, the employee’s predominant purpose was his or her personal interest, the disclosure was not made in good faith. Thus, it would appear, in light of Street and Bachnak, it is not necessary to demonstrate personal antagonism or malicious motivation to deprive a disclosure of good faith, it will be sufficient that the employee does not act predominantly in the public interest but rather for his or for her personal interest.

3.7 I have already referred to the proper approach to the burden of proof in a whistle blowing claim, as set out in Kuzel. I consider that, as established in Kuzel, the placing of the burden on the employer of proving the reason for dismissal and proving that it was not a prohibited reason applies equally to the interim relief provisions contained in Articles 163 – 164 of the 1996 Order. In my judgment, it would, in any event, make little sense to apply a different burden of proof at this interim relief stage. The tribunal is required to make an assessment, based on the material available at that interim stage, on what it appears to it is likely (as interpreted in Taplin) to occur at the full merits hearing. To carry out that task must, in my judgment, require it to apply the same burden of proof as will be required to be applied by the tribunal at the full merits hearing.

In Kuzel, the Court of Appeal made it clear that there was good reason for placing the burden on the employer since:-

“An employer who dismisses an employee has a reason for doing so. He knows what it is. He must prove what it was.” (Paragraph 61)

In Kuzel, Mummery LJ, emphasised that the protected disclosure provisions must be construed and applied in the overall context of unfair dismissal law to which [Article 134A] was inserted. At Paragraph 48 of his judgment, he cautioned, in the context of a protected disclosure claim:-

“Unfair dismissal and discrimination on specific prohibited grounds are, however, different causes of action. The statutory structure of the unfair dismissal legislation is so different from that of the discrimination legislation that an attempt to cross-fertilisation or legal transplants runs the risks of complicating rather than clarifying the legal concepts.”

In NHS Manchester v Fecitt [2011] EWCA Civ 1190, the Court of Appeal confirmed that in the unfair dismissal context, under Article 134A of the 1996 Order, the approach in relation to the burden of proof was as set out in Kuzel. However, in a case under Article 70B of the 1996 Order (a worker has the right not to be subjected to any detriment by any act or any deliberate failure to act, by his employer done on the ground that the worker has made a protected disclosure; and the detriment in question does not amount to dismissal) the Court of Appeal held that a different test would apply – namely that Article 70B would be infringed if the protected disclosure materially influences (in the sense of being more than a trivial influence) the employer’s treatment of the employee. As a Elias LJ stated:-

“If Parliament had wanted the test for the standard proof in [Article 70B] to be same as for unfair dismissal, it could have used precisely the same language but it did not do so.”

As stated previously, this claim, the subject-matter of the application for interim relief, is made under Article 134A of the 1996 Order, not Article 70B. Therefore the different approach seen in Fecitt, in relation to claims under Article 70B of the 1996 Order, had no relevance to my determination of this application.

4.1 It has to be remembered, for the purposes of this application for interim relief, that I was not required to make any relevant findings of fact and/or to determine the claimant’s claim, which will be the task of the tribunal at the substantive hearing on the merits; but rather my task was limited to whether it appeared to me that it was likely (as interpreted in Taplin), that at that substantive hearing the tribunal would find that the reasons or, if more than one, the principal reason, for the dismissal was that the claimant had made a protected disclosure.

Subject to the above, and on the basis of the submissions which were made by both parties and/or the documents to which I was referred during the course of those submissions, I had regard to the following matters, as set out in the following sub-paragraphs, which I considered were relevant for the determination by me of this application for interim relief.

4.2 The claimant, at all material times, was employed as an adviser/appeal representative with the respondent and prior to a team meeting on 9 September 2010, there do not appear to have been, for the purposes of this application, any relevant issues between him and his employer, the respondent. However, from the date of that meeting, the claimant submitted that a series of relevant events which culminated in his dismissal by the respondent or on about 13 December 2011; and which he maintained was on the ground that he had made a protected disclosure to the respondent.

4.3 Following the team meeting on 9 September 2010, he sent to his line manager, Ms Margaret Ellis, an e-mail on 11 September 2010. At the start of the e-mail he referred to his concern that what he had said at the meeting had caused some tension and there was a feeling that he did not mean what he had said and he was just emotional, because he was under pressure in his personal life. It was accepted, during the course of this hearing, that the claimant had, at that time, personal pressures in his life; but these were unconnected with his work. In the e-mail, the claimant referred to the move to new premises by the respondent in June 2010, and how that had affected, not least from the physical layout of the building, the ability for staff, such as himself, to satisfactorily deal with the number of clients using the services of the respondent and, in particular, the operation of the ‘drop-in service’. He pointed out that “we have struggled to allocate enough appointments throughout the week and so fewer people are being seen than normally would be the case on the drop-in day. Consequently the service is thrown out of kilter. Drop-in days are too frenzied and appointment days are too sedate”.

He then put forward a number of proposals/changes which he considered might alleviate and/or reduce the problems he had referred to above. He concluded by hoping that the net effect “of these changes will be to transform us into a more cohesive service” and his belief “that we can get more from our volunteers for longer and that their day can be more focused and directed and thus, hopefully, more beneficial to them and to our service”.

Following the said e-mail, the claimant took a short time off work on grounds of stress citing as one of the grounds, workplace tension. He also, on 16 September 2010, apologised for the manner in which he had spoken out at the team meeting.

In the following months, the claimant referred to various workplace tensions/ pressures involving himself and other advisers employed by the respondent, culminating in him sending to Mr Louis Boyle, the Chairman of the Banbridge Citizens Advice Bureau, a letter dated 2 March 2011.

In this letter, he commenced by referring, in general, to the duty of care/health & safety responsibility, both statutory and otherwise, placed upon an employer. He then referred to a particular incident involving a new employee whom he stated was left unsupervised but needed support. He also repeated, in terms, his earlier concerns about the work practices, in particular, in relation to the drop-in service and how busy that service was. He contended that “for quite some time, the pressure drop-in puts on advisers was unsustainable and that the management had failed to deal with the issue of advisers often being overwhelmed by the number of clients at drop-in”.

He complained of lack of morale, as advisers did not feel they were being listened to by various members of management, in particular, the manager and the senior adviser.

In a further e-mail of 8 March 2011, he again referred to the pressure the Bureau was under. He stressed that he was not making complaints [tribunal’s emphasis] about the manager and the senior adviser; but rather concerns [tribunal’s emphasis] and had raised them “in the hope these matters can be dealt with using a soft touch in an atmosphere of mutual respect”. He further expressed the view that Mr Boyle was placing his concerns on the long finger whilst other ‘personnel’ were being looked at first, in light of the reply by Mr Boyle to his earlier e-mail in which Mr Boyle had indicated that the matters raised by the claimant were operational matters and were being dealt with by the manager in consultation with himself.

In a letter dated 16 March 2011, the manager, Ms Ellis, responded further to the matters raised in the previous correspondence by the claimant to Mr Boyle. She expressed the view that the concerns raised by the claimant should, in the first instance, have been addressed through her. She noted the concern expressed by the claimant for the new recruit; but indicated that she had further investigated the matter and found the new recruit had not felt she had inadequate levels of support. She maintained the level of support provided was in line with acceptable standards in turns of membership requirements and organisational policy. She also pointed out the Bureau was moving to a triage appointment model of service delivery, which was currently under development.

The claimant, in turn, responded to the manager’s letter, by a further letter dated 22 March 2011, which, in essence, repeated his earlier concerns about workplace practices and methods of working. He concluded by urging the manager “to engage with me and my colleagues; to deal with skirmishes that have emerged, to work proactively to alleviate my stress and that of my colleagues, to look again at service capacity and priority and to help to engender within the workplace a feeling of mutual respect”. In a further letter dated 6 March 2011 to Ms Ellis, the claimant again referred to workplace pressure which he was under, referring to specific difficulties that had happened in the workplace, and, in particular, in the context of the fact there were, at that time, fewer advisers and give warning that he might require to take sick leave, in the circumstances.

4.4 On 21 March 2011, the manager, Ms Ellis, raised a grievance which she sent to Mr Boyle, the Chairman of the respondent. She referred, inter alia, to feeling “that there has been continual low grade harassment and bullying from some of the advisers, leading to a high level of stress and loss of confidence in her ability to carry out her job effectively”. She stated that this had been going on since early September 2010 and also stated, inter alia, “ … there has been constant criticism of the Bureau’s operating procedures which have always been in line with the membership requirements, criticisms of the roles carried out by the senior adviser and debt adviser and criticisms of the way in which the Board functions …”. She referred to the fact that the claimant had complained about the stress allegedly experienced by other advisers because of the necessity to deal with too many clients. She complained that the problems had been exacerbated by the claimant, and another “going over my head and stating a lack of confidence in my ability to handle matters. There has been a constant series of episodes which are in themselves low grade stirring but have created an atmosphere which is unpleasant and not conducive to good relations in the Bureau …”.

4.5 At the beginning of April 2011, the respondent commissioned a report, which subsequently became known as ‘The Shanks Report’, which was a report on grievances and related issues raised by management and staff, including the claimant. It was conducted by Mr Shanks, whom the claimant now alleges was a business partner of Mr Mowbray, the Vice Chairman of the respondent, and therefore was not as ‘independent’ as might have appeared. The claimant was interviewed on 4 April 2011. It is apparent from the report that the various workplace concerns, and more, which had been raised by the claimant, as indicated above, were raised and discussed and addressed for the purposes of the report. The report sets out a number of recommendations as a way forward to deal with the issues raised. The report also dealt with specific matters/issues raised in relation to various members of staff. It considered, in relation to the claimant, for example, issues of stress in his personal life impacting on his job/performance; but also in relation to Ms Ellis, the matter raised by him in her grievance. Specific recommendations for the way forward were made in the report (see further Paragraph 4.9 of this decision).

4.6 In relation to the claimant, Mr Shanks made a detailed recommendation involving, inter alia, risk/impact assessment and possible involvement of a Occupational Health Physician and/or the claimant’s GP, if appropriate in the circumstances. Mr Shanks stressed that, before taking any such action, the claimant should be consulted and informed that he was a valued employee and that the course of action was to ensure his well-being and that of the Citizens Advice Bureau. He pointed out that, if the claimant refused, disciplinary action might be the only recourse.

The claimant was suspended from work on or about 18 April 2011, to enable the recommendation of Mr Shanks to be carried out and his fitness to work clarified.

An Occupational Health Consultant’s appointment was arranged for 17 May 2011, which the claimant refused to attend. He was warned, if he continued to refuse, this might result in disciplinary action. In the event, the claimant provided to the respondent on 16 May 2011 a report from his own General Practitioner. The General Practitioner made his report in the context that he had been advised by the claimant that “doubt had been cast on the state of his mental well-being, and thus his fitness to work, and it had been suggested to him that he should attend either Occupational Health or his GP”. The General Practitioner referred to reports from the claimant that there was workplace stress. The General Practitioner stated, in his report, he was satisfied that the claimant did not have any current mental or physical problem; nor had he in the past seven years during which he had been registered in the Practice and expressed the hope that the current work-related stress could be resolved.

On 23 May 2011, the Vice Chairman of the respondent, Mr R C Mowbray, wrote to the claimant about the risk assessment; but also the attendance of the claimant with an Occupational Health Consultant, as recommended in The Shanks Report. The letter, in particular, set out the reasons for the consultation, as supplied to the Consultant; namely that the respondent believed the claimant was suffering from mental ill-health, which was manifesting itself in a number of ways and it wished to confirmed, if the view of his health was correct and, if so, if the workplace was a primary contributory or non-contributory factor and/or was he fit, at present, or likely to be in the future, to carry out his duties, without causing harm to his well-being.

In a letter dated 23 May 2011, the claimant raised a grievance against Mr Boyle and Mr Mowbray, the Chair and Vice Chair of the respondent, raising complaints/ grievances about The Shanks Report but also the arrangements for a disciplinary hearing on 24 May 2011 for refusing to attend the appointment with the Consultant. The claimant stated, inter alia, that “I believe that I have been victimised because I raised issues of health and safety in the workplace, despite raising these in a reasonable fashion and despite my having the health and safety of me and my colleagues and the interest of Banbridge & District at heart … I contend that, on the balance of probabilities, they both have pursued an agenda that aims to bring about my removal from my position as general adviser/tribunal representative within Banbridge CAB …”.

By letter dated 24 May 2011, Mr Boyle after confirming the suspension of the disciplinary hearing then referred to the fact that “for some period of time, the manager, in her conversations with me, has indicated that she has concerns regarding your behaviour and its impact on the Bureau in general. More recently [tribunal’s emphasis] it has been brought to my attention that there have been allegations of insubordinate, bullying and threatening behaviour on your part towards the manager. I’ve also been informed by the manager and two other female members of staff in the Bureau that they are not comfortable being left on their own in your presence as your attitude, in their view, is aggressive. In addition there have been continuing concerns about your recording practice, even though corrective action has been discussed with you.

Whilst it was always the intention to have the above matters raised with you, the initial intent of the Vice Chair and myself was to have an Occupational Health assessment carried out to determine if any of the above issues may have been influenced by a medical condition. However, given the content of your doctor’s letter, ie ‘that she is not aware of any medical condition which could preclude you from work, and your refusal to attend the Occupational Health consultation on 17 May, I have decided that these allegations should now be fully investigated, in accordance with the Bureau’s disciplinary procedure. I also believe that this can only be carried out with you absent from the Bureau. I am therefore suspending you on full pay until all of these matters of concern and allegations are fully investigated. In correspondence with Robin Mowbray, relating to the appointment with the Occupational Health Consultant, you state that you wish a risk/impact assessment carried out in relation to yourself as recommended in The John Shanks Report. My investigation will now incorporate this risk impact/assessment. As part of the investigation I will be inviting you to meet with me and when the investigation is complete you will receive a copy of my findings. In the event that the investigation was to confirm that any disciplinary offence has been committed, then this will be progressed under disciplinary procedures.

… I am conscious that you have been absent from the Bureau for a number of weeks at my request and I will endeavour to have the above matters investigated as quickly as possible … .”

In a response dated 26 May 2011 from the claimant to Mr Boyle, the claimant, inter alia, made it clear that he was making no claim of bullying against his manager, Ms Ellis; but that she had consistently failed to manage the workplace in a fashion that would allow him and his colleagues to work in a functional and safe environment. In addition, the claimant expressed astonishment that, prior to the letter, Mr Boyle, neither in correspondence or in meetings, had informed him of the specific allegations by Ms Ellis that he had bullied, threatened or been insubordinate to her and/or that two other female members of staff had expressed the view that they were uncomfortable in the claimant’s presence. The claimant stated that he believed these allegations were merely an attempt to keep him out of the workplace; although he accepted that it was of fundamental importance that they should be investigated fully and thoroughly.

4.7 A detailed investigation was then carried out by Mr Boyle and his investigation report was the subject of a review by an external firm of consultants, Alister Joynes Associates, in or about November 2011. In the course of the said report and/or review there is, not surprisingly, reference to many of the events/correspondence to which I have referred to above.

At the conclusion of the review, it was recommended that the disciplinary panel should hear evidence in relation to the claimant’s conduct with respect to:-

“(1) insubordination

(2) Intimidatory behaviour

both of which amount to gross misconduct

The panel should be asked to consider the following charge on the grounds of:-

Some other substantial reason of a kind as to justify dismissal

(3) the conclusion that working relations between the claimant and his colleagues, his manager and specified Board members of Banbridge CAB have fundamentally and irretrievably broken down as a result of the claimant’s attitude and behaviour

It would be for the disciplinary panel to make a determination on the basis of the evidence put before it, whether gross misconduct has reasonably been demonstrated. It may also be necessary for this panel to determine as to whether there is or is not any prospect of good relations every being restored.”

4.8 A disciplinary hearing was subsequently held on 7 December 2011 and also 13 December 2011, neither of which dates the claimant attended. The disciplinary panel was:-

Mr Mowbray, the Vice Chair of the respondent; and

Mr McAleenan, a member of the Management Committee.

By letter dated 13 December 2011, the claimant was informed by Mr Mowbray of the outcome of the disciplinary hearing, upholding the three allegations (see later in this decision) and as a consequence finding that the claimant’s actions and behaviour equated to gross insubordination; and further that in line with the Bureau’s disciplinary procedure, this offence fell within the category of gross misconduct and as a consequence of this the panel’s decision was to dismiss the claimant from the employment of the respondent with immediate effect, ie from the date of the letter. The claimant was advised of his right to appeal the said decision to dismiss him. I was informed, during the course of this hearing, that the claimant had appealed the said decision and, although the appeal had recently been heard, the outcome of the appeal was not yet known.

By e-mail dated 15 December 2011, the claimant, in addition to stating he wished to appeal, asked for reasons for the said dismissal.

By letter dated 20 December 2011, the claimant was informed by Mr Mowbray as follows:-

“Regarding the reason for your dismissal, I would confirm that you were found guilty of gross insubordination resulting from your actions and behaviour. Specifically the panel found you guilty of the following allegations, as contained in the letter of invitation to the disciplinary hearing dated 22 November 2011, a copy of which you hold:-

‘Insubordination in respect of –

(1) You placing notes on the NICAB website without the agreement of the manager, and in contravention of her requests that you did not do so in advance of that agreement. In reaching its conclusion the panel considered the written report of the manager and the fact that you gave no reasonable explanation during the investigation for your actions.

(2) On the basis of the manager’s written report the panel were satisfied that your refusal to leave work on 29^th of March when instructed to do so by the manager was insubordination.

(3) Bypassing the manager with a complaint direct to the Chairman – as contained in your letter of 2^nd of March 2011 – which the panel considered demonstrated a conscious challenge by you of the manager’s authority and a further example of insubordination. In addition the panel found that your response to the request of the manager in respect of the NICAB AGM and failure to leave the workplace on 29^th of March and the manner of your refusal – as stated in the manager’s written report, corroborated by the written statement provided by the senior adviser – was unacceptable behaviour. The panel also found that the responses given to the Chairman in his role of investigating officer, as detailed in the notes of the meeting of the 4^th of July, did not provide a reasonable defence of this behaviour.

Use of threatening and intimidatory behaviour. The panel upheld this allegation in respect of the verbal threats made by you to the manager on 29^th of March, when she had asked you to leave the workplace and the fact that two female members of staff … have made written statements to the effect that they felt threatened by your behaviour and did not wish to be left alone on the premises with you.

In considering the conclusions of the A. Joynes Report, the panel concurred that your actions in raising grievances against the manager, staff colleagues and members of the Management Committee, none of which have been upheld, and the fact that members of staff has stated their concern in the event of having work in the premises alone with you, have resulted in a fundamental and irreconcilable breakdown in work relationships.

… .”

4.9 The claimant, in his submission at the hearing of this matter, has emphasised that the events of 19 March 2011, which feature in the disciplinary decision, were not apparently referred to by Ms Ellis when she was interviewed for The Shanks Report in early April 2011; and it was only in May 2011 that there was any indication by Mr Boyle to her of such allegations by Ms Ellis.

Further, the claimant pointed out that, in a letter to Mr Shanks dated 4 April 2011, he had refused in some detail, to his complaints about what was taking place in the respondent in relation to both himself and other advisers, which he further expanded upon in interviews with Mr Shanks and which reflected, albeit in greater detail much of what had been raised in earlier correspondence, and to which reference has been made previously.

He pointed out that in The Shanks Report itself, a summary of the topics/issues raised by the claimant were set out in bullet form including, for example, ‘staff turnover and reasons’, ‘workplace stress’, ‘suggestions falling on deaf ears’, ‘response to issues’, ‘concerns and complaints’, ‘victimisation’, ‘case checking and abuse of power’, ‘workload pressures’, ‘drop-in sessions unsupported’, ‘client adviser timeframes and numbers’, ‘recruitment, replacements, resources and planning’.

5.1 In Paragraph 14 of his judgment in Ministry of Justice v Sarfraz [2011] UKEAT/0584/10, Underhill P helpfully summarised the task of the tribunal in determining whether an interim relief order should be made, pursuant to [Article 163 – 164 of the 1996 Order] when he stated:-

“Thus, in order to make an order under [Article 163 – 164 of the 1996 Order] the judge had to have decided that it was likely that the tribunal at the final [tribunal’s emphasis] hearing would find five things:-

(1) that the claimant had made a disclosure to his employer;

(2) that he believed that the disclosure tended to show one or more of things itemised at (a) to (f) under [Article 67B(i)];

(3) that the belief was reasonable;

(4) that the disclosure was made in good faith; and

(5) that the disclosure was the principal reason for his dismissal.”

I have already referred to the proper interpretation, as found in the case law, of the term ‘likely’, and which case law, for the reasons set out previously I intend to follow – namely, ‘pretty good chance of succeeding’. This is recognised to be a higher degree of likelihood than, for example, the formula found in the Rules relating to strike-out applications under Rule 18 of the Rules of Procedure, namely ‘reasonable prospect of success’. It also has to be remembered, in reaching a decision on this application, I have not had the opportunity of hearing oral evidence by both parties. The ability to draw inferences, assess credibility or otherwise of relevant witnesses was therefore limited, if not impossible, at this stage of the proceedings – where I have only heard submissions by the representatives and have had my attention drawn to certain documentation in the bundles produced by the parties. It is apparent from the submissions by the respondent’s representative that there are clear disputes between the parties on the facts on issue and/or in light of the legal principles, as set out in the case law referred to previously.

5.2 As Mr Mulqueen recognised, the major dispute between the parties, assuming that it found that the claimant made a protected disclosure (see later), related to whether the said disclosure was the principal reason for the dismissal.

I have concluded, in order to satisfy the necessary standard of likelihood required for this application, the tribunal could not find, at this stage, in essence, ‘on paper’, despite the claimant’s careful forensic examination of that paperwork, that the reason, if more than one, the principal reason for the dismissal was that the claimant had made a protected disclosure, pursuant Article 134A of the 1996 Order.

To do so, in my judgment, will require detailed oral evidence with such cross-examination of witnesses as may be necessary, in order to determine what was the reason, or if more than one, the principal reason. For example, the claimant suggests, relying on the witness statements produced for the purposes of this application, that what has happened has also happened to others in the employment of the respondent and that there is therefore ‘a pattern of behaviour’ by the respondent. Such evidence, in my judgment, would require to be properly tested, before I could reach any such conclusion, in light of the Taplin standard. The respondent equally suggests, given the involvement of a number of persons (eg Mr Shanks, A Joynes) including persons whom he submitted were external/independent of the respondent, in relation to the decisions relating to the disciplinary proceedings brought against the claimant and the ultimate decision to dismiss the claimant, that the claimant, in essence, was suggesting some form of conspiracy/collusion between all these persons to dismiss him because he had made a protected disclosure (which was itself denied by the respondent). These issues, in my judgment, could only be resolved at a substantive hearing on the merits. It also has to be noted, in this context, that, despite my pressing the claimant, he could not point to any document in the voluminous bundle of documents which he produced to the tribunal that there was any express reference, upon which I could rely, in holding that the dismissal was because of the protected disclosure. He acknowledged that he was asking the tribunal, at this stage, to draw inferences from a series of events in order to reach the necessary conclusion, to the standard required, as set out in Taplin. This, in my judgment, was not possible.

I do not ignore there would appear, on the limited information before me at this stage, to be some linkage between the matters raised by the claimant in the period, in particular, from in or about March 2011 and his dismissal in or about December 2011 and the detailed reasons for the dismissal, set out in correspondence; including, for example, the reason referred to that the claimant, when making his complaints, had ‘gone over the head of his line manager’. It is these very complaints that the claimant relies upon when contending there was a qualifying protected disclosure. I also do not ignore that the events of 29 March 2011, involving the claimant and his line manager, feature strongly in the findings of insubordination/intimidatory behaviour made against the claimant; but, as he submitted, did not appear to have been raised with Mr Shanks by the line manager albeit he interviewed the line manager shortly thereafter. Similarly, the claimant has pointed out that the events of that day do not appear to have been raised with the claimant until some considerable time after 29 March 2011. However, these are the very issues which a tribunal, at a substantive hearing, may require to consider further, in light of all of the evidence given; but are not, in themselves, in the absence of such a hearing, at this stage, sufficient to allow me to conclude, to the necessary standard, that the claimant has shown the reasons for the dismissal were because he had made a protected disclosure.

5.3 In the circumstances, I am therefore not satisfied that the claimant is entitled to an order for interim relief, pursuant to Articles 163 – 164 of the 1996 Order. I therefore refuse his application.

5.4 In light of my conclusion, as set out above, it is not strictly necessary for me to further consider the other necessary elements (1 – 4) for an application for interim relief, as set out by Underhill P in Paragraph 14 of his judgment in Sarfraz.

However, given that both parties referred to these other elements, I also set out, briefly, in the circumstances, my conclusions on those matters.

5.5 Again, applying the Taplin test, I was not satisfied the claimant had shown that he had made a qualifying protected disclosure. In particular, applying that test, I came to the conclusion I could only be satisfied, in relation to this issue, after hearing all relevant evidence at a substantive hearing. In particular, it was apparent that, although the claimant had, for the purposes of this application, concentrated on a number of documents/correspondence/e-mails; he was also suggesting that this was part of a much ‘larger picture’. If he is correct, in my view, this could only be properly assessed in the context of a substantive hearing on the merits. It was also apparent, from submissions made by the claimant and Mr Mulqueen, that there will be considerable dispute, at any such substantive hearing, between the parties, arising out of the dicta in the cases of Cavendish and Goode in relation to whether the claimant has disclosed information, ie facts, about what was taking place in the claimant’s workplace or merely allegations about his treatment and that of others. At this stage, it was impossible, in my judgment, to satisfactorily resolve such issues.

5.6 It if had been necessary to do so, I would have been reluctant, in the circumstances, to refuse this application merely on the grounds that the claimant did not have the necessary belief; particularly, in light of the decision in Babula, that it was not necessary for the information to be factually correct, and it was sufficient if the information disclosed tended to show a relevant failure. I was also very much aware that the test of belief was subjective, albeit the test whether the belief was reasonable would be objective.

5.7 There is no doubt the Parkins case has given considerable scope to the claimant to rely on a breach of contract to satisfy the term ‘legal obligation’, as set out in Article 67B(1)(b) of the 1996 Order. The claimant, in his submissions, raised a number of issues, somewhat in a scattergun approach, in relation to work practices/ work pressures and how they were handled by the respondent; which, I accept, could potentially give rise to issues whether the respondent was, at the relevant time, in breach of the implied term of trust and confidence. The claimant has also suggested that the respondent has been in breach of the Dignity at Work Policy arising out of the above matters, which would appear, from its terms, to be incorporated into the terms of the claimant’s contract of employment; albeit it has to be noted that the respondent would deny this. However, whilst acknowledging that what was alleged by the claimant could fall within Article 67B(1)(b) of the 1996 Order, these issues could only be properly determined, in my judgment, in light of the standard set out in Taplin, at a substantive hearing. I also accept, not least in the context of the Fincham case, that the claimant’s references to stress/workplace pressures on himself and other advisers could also fall within Article 67B(1)(b) of the 1996 Order (‘Health & Safety’); but again, for similar reasons, any relevant conclusions, in light of Taplin, would require to be considered and determined at a substantive hearing and not at this stage.

In relation to the issue of good faith, which was also raised by the respondent, since it related to issues of motive, I came to the conclusion, on the basis of the submission/documentation before me, that such an issue, in light of the Taplin test, could only be satisfactorily determined at a substantive hearing.

6. I therefore refuse the claimant’s application for interim relief. The claimant’s claim of unfair dismissal will therefore proceed to a substantive hearing on the merits.

Chairman:

Date and place of hearing: 25 – 26 January 2012, Belfast

Date decision recorded in register and issued to parties: