The claimant was employed by NASUWT, the teaching union, as a branch officer.  The issue arose when the General Secretary of NASUWT issued a letter to the claimant regarding his alleged conduct at a meeting.  It was alleged that he had drunk four pints of Guinness before driving off in his company car. A police report was made on foot of this as well as an attempt to remove the claimant’s company car.  The claimant responded stating that the allegation was a lie, a report made to the police about his conduct amounted to wasting police time and that his car could not be taken under this contract of employment.

Following a series of meetings held all on one day, a decision was made to dismiss the claimant with immediate effect stating that there was no mutual trust and confidence any longer.   The claimant sought interim relief on the basis that this was an automatic unfair dismissal as a result of making a protected disclosure as well as the dismissal taking place due to his trade union activities.   The issue with the trade union activities was dismissed at first instance as his union, the GMB, did not produce a certificate as required under Section 161(3) of the Trade Union and Labour Relations (Consolidation) Act 1992.

The EAT held that the test for awarding interim relief was outlined in Taplin v C Shippam Ltd [1978] ICR 1068 and it must be shown that there is ‘a pretty good chance of success’ which had been used by the ET in awarding interim relief which allowed the claimant’s contract of employment to continue.

In making a determination, the EAT examined whether there had been a protected disclosure and whether such disclosure was in the public interest.  It referred to Chesterton Global Ltd v Nurmohamed [2017] ICR 731 in which Underhill LJ stated that the question of whether a disclosure is in the public interest depends on its character of the interest served.  As a result, the EAT agreed that the claimant’s email outlining the allegation of wasting police time does fit into the initial requirement for a protected disclosure.  However, on the issue of public interest it was held that the Tribunal erred in stating that a private interest of an employee could be a matter of public interest and was a ‘matter of scale’.  As a result, it was held that the ‘pretty good chance of success’ is not found when determining if there was a public interest in the disclosures.  The decision on interim relief was overturned.

Practical Lessons

This case demonstrates the test that is employed by the Tribunal when a claimant is seeking interim relief.  There is a need to provide interim relief, especially in cases of unfair dismissal as the claimant may not have any sustainable income as a result.  The protection is given by the need for a ‘pretty good chance of success’ to be shown.   This was seen not to be ‘beyond reasonable doubt’ but a threshold that sat between the balance of probabilities and beyond reasonable doubt.    In this case, the EAT shows how all elements of the claim would have to be examined with the view of pretty good chance of success and when one fails, then the claim for interim relief would fail also.
https://www.gov.uk/employment-appeal-tribunal-decisions/nasuwt-v-mr-richard-harris-ukeat-0061-19-ba