United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR T RAJA (The Appellant in Person)
For the Respondent	MR B COLLINS (of Counsel) Instructed by: The Treasury Solicitors Employment Law Team One Kemble Street London WC2B 4TS


 


SUMMARY

VICTIMISATION DISCRIMINATION

Whistleblowing

Dismissal

On an application for interim relief under sections 128-129 of the Employment Rights Act 1996 the Employment Judge erred in law in finding that such applications should be restricted to simple factual disputes. By doing so she added a requirement that had no statutory basis. Appeal allowed and remitted for hearing before another Employment Judge. Observations on the meaning of "likely" in section 129(1) of the Employment Rights Act 1996: (Taplin v C. Shippam Ltd [1978] IRLR 450) approved and followed.


 


HIS HONOUR JUDGE BIRTLES

Introduction

1. This is an appeal from the judgment of Employment Judge Hill sitting at Reading on 22 January 2009. The judgment was sent to the parties on 28 January 2009.
2. The Employment Judge refused Mr Raja's application for interim relief under sections 128-129 of the Employment Rights Act 1996.
3. At the hearing of this appeal, Mr Raja represented himself and the Respondent was represented by Mr Ben Collins of Counsel. I am grateful to both of them for their written and oral submissions.

The History

4. Mr Raja was employed as a Prison Officer at Her Majesty's Prison and Young Offender Institution at Feltham. He was dismissed on 14 October 2008. The effective date of termination was 19 December 2008.
5. On 22 December 2008 Mr Raja presented a claim form, which is at EAT bundle pages 41-99. He pursued 12 heads of claim as set out in paragraph 266 of the claim form: EAT bundle page 97. These included claims that his dismissal was on the grounds of his race and his disability. He also claimed that the reason for his dismissal was on the grounds of public interest disclosure and/or health and safety. He also claimed that his dismissal was unfair under the Employment Rights Act 1996.
6. As part of his claim he sought interim relief pursuant to sections 128-129 of the Employment Rights Act 1996 as regards the claims of dismissal for the reason of public interest disclosure and health and safety. The judgment is short. The material part says this:

"3. I had before me the following documents:

ET1

The claimant's submissions of 22 pages

The respondents' submissions of 9 pages

The claimant's bundle of 298 pages

The respondents' bundle of 312 pages

Copies of Taplin v C Shippam Ltd [1978] IRLR 450;

Parkins v Sodexho [2002] IRLR 109.

A witness statement of Cathy Robinson, which I did not read

4. In advance of seeing the parties I read the ET1 and both parties' submissions. During the hearing I read the 2 cases referred to above.

5. After reading the ET1 and the submissions, I was concerned that the interim relief procedure had been invoked. I advised the parties of this at the outset of the hearing, explaining that it appeared unlikely that I would be in a position to make the decision as required by s.129 of the ERA 1996 given the sheer volume of evidence to be placed before the Tribunal, and this prior to the respondent presenting its response.

6. Both parties had the opportunity to address me on whether interim relief was an order I could make faced with such a large number of allegations, spanning some 3 years.

7. Mr Raja was anxious that I should consider all the evidence he had produced in his bundle and referred to in his submission. In essence he said that all his complaints about his treatment in relation to his race and his disability constituted protected disclosures such that he was entitled to the order sought.

8. The respondents I their submissions said that the claimant was seeking to displace the reason for his dismissal on the grounds of capability. He had put forward a number of explanations. It would not be possible from all the information the Tribunal had before it to reach the decision that he could show he had a pretty good chance of success in his claim that the dismissal was for a reason relating to public interest disclosure or health and safety.

My consideration of the arguments

9. I considered the purpose of an application for interim relief. It is an emergency interlocutory application to maintain the status quo as regards employment. Of the claims that Mr Raja pursues, it applies only to that of public interest disclosure and detriment on the grounds of health and safety. It is not applicable to claims of race or disability discrimination.

10. The burden of proof is described in Taplin as being higher than "reasonable prospect of success". The claimant must show that he has a pretty good chance of success.

11. Could Mr Raja do this? In my view no. He relies on 82 allegations (the respondents' estimate) covering the period July 2005 to March 2008. These are set out in 259 paragraphs in the ET1.

12. How is a Tribunal to reach a view on the likely success of 1 or 2 of the claims pursued as opposed to the others without hearing all the evidence, particularly where both types of discrimination claimed require the Tribunal to draw inference based on the primary facts found. This is an impossible task with so many allegations and so many different heads of claim.

13. In my view, despite there being no case law on point, an application for interim relief is intended to apply to claims where there is a clear and simple conflict between the parties' assertions, e.g. an employee dismissed for gross misconduct; that employee has been a thorn in the side of his employer as a trade unionist. That is a direct conflict that could be addressed in an emergency. A complicated, long running dispute about race discrimination, disability and arrangements about how to return to full time working is not suitable for this type of emergency order.

14. I therefore rejected the claimant's argument and refused the application.

15. Had I not refused the application, having read the submissions, but not all the documents contained in the 2 bundles, I would have struck the application out under r.18(7)(b) of the Employment Tribunal(Procedure) Regulations 2004 as being vexatious and having no reasonable prospect of success. It was inappropriate to pursue such an application when it is clear from the ET1 that over many months there has been a dispute between employee and employer over a range of issues."

The Notice of Appeal

7. Mr Raja's original Notice of Appeal was dismissed by HHJ Peter Clark under EAT rules 3(7) and 3(8) as disclosing no reasonable prospects of success.
8. Mr Raja renewed his application under rule 3(10) before HHJ McMullen QC on 19 August 2009. The sealed order is dated 24 August 2009 and makes clear that HHJ McMullen QC ordered that:

"The only grounds to be advanced are those in the Skeleton Argument, and if necessary the challenge in the Notice of Appeal to the meaning of 'likely'. No other grounds being advanced at the hearing, the application as to the remainder of the Notice of Appeal is dismissed and no further action will be taken on it."

9. Mr Tatton-Brown's skeleton argument is at EAT bundle pages 130-132. The relevant paragraphs of Mr Raja's Notice of Appeal dealing with the issue of the meaning of the word "likely" appear at EAT bundle paragraphs 4 and 10.

The Issues

10. At the beginning of the hearing I identified three issues which I had to determine. Neither Mr Raja nor Mr Collins dissented from these three issues. They are as follows:

(i) The grounds in Mr Tatton-Brown's Skeleton Argument.

(ii) The meaning of the word "likely" in section 129(1) of the Employment Rights Act 1996.

(iii) If the appeal is successful, what disposal order should I make?

The Law

11. Section 128 of the Employment Rights Act 1996 says this:

"128 Interim relief pending determination of complaint

(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 principal reason) for the dismissal is one of those specified in section 100(1)(a) and (b), 101A(d), 102(1), 103 or 103A or in paragraph 161(2) of Schedule A1 to the Trade Union and Labour Relations (Consolidation) Act 1992,

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 before, on or after that date).

(3) The tribunal shall determine the application for interim relief as soon as practicable after receiving the application.

(4) The tribunal shall give to the employer not later than seven days before the date of the hearing a copy of the application together with notice of the date, time and place of the hearing.

(5) The tribunal shall not exercise any power it has of postponing the hearing of an application for interim relief except where it is satisfied that special circumstances exist which justify it in doing so."

Section 129 provides as follows:

"129 Procedure on hearing of application and making of order

(1) This section 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 principal reason) for his dismissal is one of those specified in section 100(1)(a) and (b), 101A(d), 102(1), 103 or 103A or in paragraph 161(2) of Schedule A1 to the Trade Union and Labour Relations (Consolidation) Act 1992."

12. It is therefore clear that an application for interim relief will apply where a Claimant alleges that s/he has been unfairly dismissed by reason of:

(i) health and safety: section 100 Employment Rights Act 1996;

(ii) being an employee representative: section 103 Employment Rights Act 1996;

(iii) being a trustee of an occupational pension fund: section 102 Employment Rights Act 1996;

(iv) being a workplace representative for working time purposes: section 101A Employment Rights Act 1996;

(v) being a person making a protected disclosure: section 103A Employment Rights Act 1996;

(vi) in relation to the statutory recognition procedure: Trade Union and Labour Relations (Consolidation) Act 1992 Schedule One paragraph 161.

13. In this appeal the Employment Judge was only concerned with an alleged unfair dismissal on the grounds that Mr Raja had made protected disclosures and health and safety complaints.

The Issues

Issue 1: the grounds raised in Mr Tatton-Brown's Skeleton Argument

14. Mr Raja adopts Mr Tatton-Brown's skeleton argument. He submits that as he had complied with any procedural requirements in section 128 of the 1996 Act the Employment Judge was obliged to consider his application for interim relief and decide the case on the basis of the test set out in section 129(1). The Employment Judge erred in law in paragraph 13 of her
    judgment in holding that:

"In my view … an application for interim relief is intended to apply to claims where there is a clear and simple conflict between the parties' assertions, e.g. an employee dismissed for gross misconduct; that employee has been a thorn in the side of his employer as a trade unionist. That is a direct conflict that could be addressed in an emergency. A complicated, long running dispute about race discrimination, disability discrimination and arrangements about how to return to full time working is not suitable for this type of emergency order."

15. Mr Collins submits that the Employment Judge asked herself the correct question at paragraphs 10-11 of her judgment and she was entitled to come to that conclusion on the material before her.

Decision

16. In my judgment the argument put forward by Mr Raja and set out fully in Mr Tatton-Brown's skeleton argument is correct. Section 128 sets out the statutory requirements which permit a claimant to make an application for interim relief. If a claimant qualifies under section 128 then s/he is entitled as a right to have his/her application heard and heard properly and fairly by an Employment Tribunal.
17. In this case the Employment Judge has added an additional criterion in paragraph 13 of her judgment for which there is no statutory or judicial authority (a fact she accepts). In my judgment that error of law is compounded by the following factors that are apparent on the face of the judgment:

(i) The Employment Judge had not apparently read either (a) the Claimant's bundle of documents comprising 298 pages; (b) the Respondent's bundle of documents comprising 312 pages; and (c) a witness statement of a Cathy Robinson. I am unable to see how the Employment Judge could take a view of the merits of the application without reading or being directed to some of this material.

(ii) Despite her rightly referring to the fact that an application under section 128 cannot be made in cases of race or disability discrimination (paragraph 9) she twice referred to the difficulty of deciding the strength of these claims without hearing the evidence on discrimination (see paragraphs 12 and 13 of the judgment). Those matters are irrelevant under a section 128 application but they clearly influenced the Employment Judge in deciding to refuse the application.

(iii) What the Employment Judge should have done was to request the parties to direct her attention to those parts of the claim form and the relevant documentary evidence which were covered by section 128. That did not apparently happen.

(iv) The comments at paragraph 15 of the judgment about striking out the application as being vexatious and having no reasonable prospect of success indicate that she failed to recognise that once Mr Raja had brought himself within the four corners of section 128 it was her function to determine his application by either granting or dismissing it. There was no application by the Respondent to strike out the application as being vexatious or having no reasonable prospects of success.

Issue 2: the meaning of "likely" in section 129(1)

18. Having heard both Mr Raja and Mr Collins, I agreed that I should also decide this point. In particular Mr Raja told me (and I accept) that there was argument on this point before the Employment Judge. In paragraph 10 of her judgment the Employment Judge said this:

"10. The burden of proof is described in Taplin as being higher than 'reasonable prospect of success'. The Claimant must show that he has a pretty good chance of success."

19. The reference is to Taplin v C. Shippam Ltd [1978] IRLR 450 where Slynn J (as he then was) set out the submissions of Counsel (paragraphs 14-20) and then said this:

"21

Having considered all these matter which have been urged before us we are unanimously of the view that the test proposed by Mr Hand of a 'reasonable prospect of success' is not one which should be adopted. The phrase can have different shades of emphasis, the lowest which we do not think is sufficient. We do not consider that Parliament intended that an employee should be able to obtain an order under this section unless he achieved a higher degree of uncertainty in the mind of the Tribunal than that of showing that he just had a 'reasonable' prospect of success. The employee begins with a certificate from the trade union official certifying that there appear to be reasonable grounds for supposing that the reason for his dismissal was the one alleged. We consider that the Tribunal is required to be satisfied of more than that before it can appear 'that it is likely' that a Tribunal will find that a complainant was unfairly dismissed for one of the stated reasons.

22

On the other hand we are not persuaded that there is a dichotomy between 'probable' and 'likely' as expressed by the Chairman of the Industrial Tribunal. We find it difficult to envisage something which is likely but improbable or probable but unlikely and we observe that the Oxford Dictionary definition does define 'likely' as 'probable'. Nor do we think that it is right in a case of this kind to ask whether the applicant has proved his case on a balance of probabilities in the sense that he has established a 51% probability of succeeding in his application, as has at one stage been contended before us. Nor do we find Mr Hand's alternative suggestion of a real possibility of success to be a satisfactory approach. This again can have different shades of emphasis. It seems to us that the section requires that the employee shall establish more clearly that he is likely to succeed than that phrase is capable of suggesting on one meaning. On the other hand it is clear that the Tribunal does not have to be satisfied that the applicant will succeed at the trial. It may be undesirable to find a single synonym for the word 'likely' but equally, we think it is wrong to assess the degree of proof which has to be established in terms of a percentage as we have been invited to do.

23

We think the right approach is expressed in a colloquial phrase suggested by Mr White. The Tribunal should ask itself whether the applicant has established that he has a 'pretty good' chance of succeeding in the final application to the Tribunal.

24

Although the Chairman of the Tribunal expressed the burden of proof differently from the way which we have done we do not consider that there is any real difference of emphasis. He thought that 'likely' meant more than 'probable' and he regarded 'probable' as being '51% or more'."

20. In his submissions, Mr Raja sought to distinguish Taplin on the grounds that case involved an application for interim relief under section 78 of the Employment Protection Act 1975 and required a certificate from a trade union before the application could be made. No such requirement exists in the present legislation. Second, Mr Raja submitted that the Taplin test was too high and referred us to SCA Packaging Limited v Boyle [2009] IRLR 746 where the House of Lords held that the word "likely" in the Disability Discrimination Act 1995 (as amended) must bear the same meaning throughout that statute. That case was concerned with the meaning of the word "likely" in paragraph 2(1) and paragraph 6(1) of Schedule I of the Act. The House of Lords held that the word "likely" meant "could well happen" rather than "probable" or "more likely than not". There was extensive discussion particularly in the judgment of Baroness Hale as to the different meanings that have been ascribed to the word "likely". Mr Raja submits that I should follow the SCA case and hold that as a matter of law the word "likely" in section 129(1) means "could well happen" rather than "probable" or "more likely than not" or "a pretty good chance of success". Third, Mr Raja refers me to two cases involving the Children Act 1989. They are In re H and Others (minors) (A.P. Respondents) [1996] AC 563 and In re O and N (minors) (FC) and others [2004] 1 AC 523. The House of Lords decided in those cases that in the context of section 31(2)(a) of the Children Act 1989 the word "likely" does not mean more probable than not. It meant a real possibility, a possibility that cannot sensibly be ignored having regard to the nature and gravity of the feared harm in the particular case: see the judgment of Lord Nicholls of Birkenhead in the In re O and N case at paragraph 60. Finally, Mr Raja refers me to the cases involving an arrest by a police officer where there has to be "reasonable suspicion" or "reasonable grounds" for making an arrest. Mr Raja submits that is also a lower standard than that required by Taplin.
21. Mr Collins invites me to uphold Taplin and says that it has been good law for 31 years. Second, he submits that Boyle is distinguishable because it involved consideration of paragraphs 2(2) and 6(1) of Schedule One of the Disability Discrimination Act 1995 (as amended), which considered (a) whether impairments would be likely to have effect but for treatment; (b) whether the effects are likely to recur: see Boyle at paragraphs 48-49. Those are questions which require substantial medical input in relation to prognosis and to the effects of medication. The context is if a person is disabled, what reasonable adjustments need to be made: see Baroness Hale at paragraph 71. By comparison Mr Collins submits that the context of section 129 is different. He submits that this is an exceptional form of relief because of the consequences to an employer if an order for interim relief is granted. In those circumstances he submits that the bar of likelihood should be set high.
22. Mr Collins distinguishes the cases under the Children Act 1989 on the basis that in those cases the bar should be set low because of the consequences of a failure to act - the likelihood that abuse of a child will take place. Similarly he distinguishes the police power of arrest cases for a similar reason - the likelihood that a crime has been committed or is about to be committed.
23. Mr Collins submits that for interim relief to be granted, a Claimant must establish not only that he has a reasonable prospect of success; but there is some other factor (or factors) which permit the Tribunal to conclude that this is one of those exceptional cases in which interim relief should be granted. Although the Claimant is not required to prove on the balance of probabilities that he will establish that the principal reason for his dismissal is the making of a protected disclosure; he should be required to show specific reasons why his prospects of success are sufficiently strong to make interim relief appropriate. Applying that test Mr Collins accepts that there will be few properly contested cases which would meet the requirements of the test.

Decision

24. I remind myself of the wording of section 129(1):

"129 (1) This section 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"... [is one of the reasons listed in the subsection].

25. What a Tribunal has to do in an application for interim relief is to examine the material put before it, listen to submissions and decide whether at the final hearing on the merits "that it is likely that" that Tribunal will find that the reason or reasons for the dismissal is one or more of those listed in section 129(1). What is clear is that the Tribunal must not attempt to decide the issue as if it were a final issue: Parkins v Sodexho Ltd [2002] IRLR 109 in the words of HHJ Altman at paragraph 29:

"Accordingly, it seems to us, that we must find that the Employment Tribunal erred in the question they asked themselves in reality, as to the reason for dismissal, by asking themselves what was the reason for dismissal and forming a judgment about it rather than asking whether it was likely that the reason would be a qualifying reason at the final hearing."

26. I have been referred to various authorities by both Mr Raja and Mr Collins. None are directly on point, save Taplin v C. Shippam Ltd [1978] IRLR 450. I have already cited the relevant passage in the judgment of Slynn J (as he then was) in that case. Taplin was considered by Cox J in this Tribunal in Kraus v Penna Plc and another [2004] IRLR 260 at paragraph 23 and by Lightman J in Bank of Credit and Commerce International SA (in compulsory liquidation) v Ali and others (No 3) [1999] IRLR 508 at paragraph 55. I accept that each of those cases considered the meaning of the work "likely" in different contexts (section 43B Employment Rights Act 1996 and breach of the implied term of trust and confidence respectively) but I can see no reason to depart after some 31 years from the authority of Taplin.
27. However, I do reject Mr Collins' submission that section 129(1) requires the Employment Tribunal to go beyond the Taplin definition of "likely". I do not accept that there must be some other factor (or factors) which permit the Tribunal to conclude that this is one of those exceptional cases in which interim relief should be granted. That again is to add a gloss to the statute which is simply not contained in the language of section 129(1). Traditionally these cases have been exceptional because they are limited to certain kinds of unfair dismissal only and I do not, for example, cover dismissal where the allegation is that the employer has dismissed the employee on grounds of race or sex discrimination. The categories of unfair dismissal which are caught by section 129(1) are themselves unusual although it may well be that there will be more applications in disclosure cases.
28. For these reasons the Employment Judge was not wrong in requiring Mr Raja to show that "he has a pretty good chance of success". She applied Taplin correctly.

Issue 3: Disposal

29. Mr Raja submitted that if I allowed his appeal then I should deal with the matter myself, hear his application and make an order for interim relief in his favour. He relied on Parkins v Sodexho Ltd [2002] IRLR 109. Apart from the bundle, which was before me for the purposes of appeal, Mr Raja handed in a supplemental bundle of documents and offered to give oral evidence himself.
30. Mr Collins opposed this proposal and submitted that I should remit the application for interim relief to another Employment Judge at Reading.

Decision

31. I agree with Mr Collins. While I accept it is unfortunate that this appeal against Mr Raja's application for interim relief has taken some 11 months to reach a decision, I do not think that it is appropriate for me to hear the application and evidence myself. It must be remitted to the Reading Employment Tribunal and I direct that it should be heard by an Employment Judge other than Employment Judge Hill.
32. My reasons for doing so are these. First, I apply the dicta of Sir John Donaldson MR in Dobie v Burns International Security Services (UK) Ltd [1984] ICR 812 at 818 GH when he said this:

"Once you detect that there has been a misdirection, and particularly that there has been an express misdirection of law, the next question to be asked is not whether the conclusion of the Tribunal is plainly wrong, but whether it is plainly and unarguably right, notwithstanding that misdirection. It is only if it is plainly and unarguably right notwithstanding the misdirection that the decision can stand. If the conclusion was wrong or might have been wrong, then it is for an Appellate Tribunal to remit the case to the only Tribunal which is charged with making findings of fact."

33. For the reasons I have attempted to give, I am not satisfied that Employment Judge Hill grappled with the material before her. Furthermore, Mr Raja tells me (and I accept) that he gave evidence before Employment Judge Hill. I have no notes of any such evidence. I am quite unable to say that despite the misdirection the decision of Employment Judge Hill is "plainly and unarguably right".
34. Second, I do not accept Mr Raja's submission that the case of Parkins v Sodexho Ltd [2002] IRLR 109 is authority that I should hear his application for interim relief. While I accept that the EAT in that case considered whether it would be right to deal with the matter themselves on the evidence that was available they were unable to do so because of the Appellant's own concerns that the totality of the note of evidence before them was not complete. It is also clear from the judgment that the EAT were not prepared to hear oral evidence being given and the witness being cross-examined: see paragraph 30. It seems to me that I am in the same position.

Conclusion

35. For these reasons I allow the appeal under issue 1 and dismiss the appeal on issue 2. The result is that the application is remitted to the Reading Employment Tribunal to be tried by an Employment Judge other than Employment Judge Hill.