Whistleblowing: interim relief

March 7th, 2016 by James Goudie KC

In Parsons v Airplus International Ltd, UKEAT/0023/16/JO, Ms Parsons claimed that she had been dismissed for whistleblowing. She applied for interim relief under Section 128 of the Employment Rights Act 1996.  If, on the hearing of such an application, it appears to the ET that it is likely that on determining the complaint  the Tribunal will find in favour of the Claimant, the Tribunal must make an Order for interim relief.  For many years it has been understood that in applying this provision the ET must ask itself whether the Claimant has established that she has a “pretty good chance” of succeeding at the substantive hearing.  This interpretation, says Judge Shanks, is justified, because if the employee satisfies the test the ET must make an Order for interim relief and, if it does so, the employer is obliged to pay the employee pending the determination of the complaint and there is no provision for re-payment in the event that she ultimately fails on the merits.

Judge Shanks gave useful guidance as follows:-

“On hearing an application under section 128 the Employment Judge is required to make a summary assessment on the basis of the material then before her of whether the Claimant has a pretty good chance of succeeding on the relevant claim.  The Judge is not required (and would be wrong to attempt) to make a summary determination of the claim itself. In giving reasons for her decision, it is sufficient for the Judge to indicate the “essential gist of her reasoning”: this is because the Judge is not making a final judgment and her decision will inevitably be based to an extent on impression and therefore not susceptible to detailed reasoning; and because, as far as possible, it is better not say anything which might pre-judge the final determination on the merits.”

The ET Judge concluded that taking everything together, although she thought Ms Parsons had a “good arguable case”, she could not say that she had a “pretty good chance of success” and the application therefore failed. Her appeal to the EAT also failed.  There was no error of law. There was only a limited obligation to give reasons falling on a Judge hearing an interim relief application. It was not for the Judge to decide the case, but to assess the chances of Ms Parsons succeeding.


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