Victimisation Discrimination – Protected Disclosure – Interim Relief
UNFAIR DISMISSAL
The Claimant applied for interim relief pursuant to s.128 of the Employment Rights Act 1996 following the termination of his contract allegedly because he had made protected disclosures. The Respondent contended that there was no entitlement to make such an application as the Claimant was not an ’employee’ within the meaning of that section. The Respondent’s application for a postponement of the interim relief application pending a determination of the employee issue was refused. At the interim relief hearing, the Tribunal considered that the ‘likely to succeed’ test under s.129 of the 1996 Act applied not just to the reason for dismissal but also to the contested issue of employee status. It determined that the Claimant had a ‘pretty good chance’ of success in showing that he was an employee and that he was dismissed for having made protected disclosures. The Respondent appealed on the grounds that the Tribunal erred in entertaining the application for interim relief before first concluding that the Claimant was indeed an employee.
Held (dismissing the appeal): On a proper construction of ss.128 and 129 of the 1996 Act, all elements of a complaint of unfair dismissal for a proscribed reason (including that it was because of protected disclosures) were to be determined at the interim relief hearing on the likely to succeed test. That included the question of employment status if that were put in issue by the employer. That construction was consistent with the intention of the interim relief regime, that being to provide a speedy remedy to preserve the status quo pending the full hearing. The Respondent’s contention that there should be a Preliminary Hearing to determine conclusively whether the Claimant was an employee before determining the application for interim relief would cause delay and would undermine the interim nature of the remedy under s.129.
Judges:
Choudhury J (President)
Citations:
[2019] UKEAT 0138 – 19 – 2507, [2020] WLR(D) 24
Links:
Jurisdiction:
England and Wales
Employment, Discrimination
Updated: 12 October 2022; Ref: scu.646843
