Employment Tribunal Rejects Whistleblower's Interim Relief Application

OUTCOME: Refused

EMPLOYMENT TRIBUNALS (SCOTLAND)

Case Number: 8000467/2026 Held in Edinburgh on 20 March 2026 Employment Judge M [NAME]

Claimant No attendance

[APPELLANT]

Respondent

Represented by:

[COUNSEL],

Solicitor

JUDGMENT OF THE EMPLOYMENT TRIBUNAL The judgment of the tribunal is that the claimant’s application for [NAME] under Section 128 of the Employment Rights Act 1996 is refused.

REASONS Introduction 1. The claimant brings a complaint under section 103A of the Employment Rights Act 1996 (‘ERA’), namely that the reason for his dismissal was that he made one or more protected disclosures. The claimant applied for [NAME] and a hearing was set down to determine that application.

2. The parties lodged a bundle of productions.

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Page 2 3. The claimant did not attend and relied upon prior written submissions. The respondent made oral and written submissions with reference to documentary evidence. No oral evidence was heard.

Non-attendance

4. On 3 March the claimant made an application for today's hearing to be heard via CVP advising that he was unable to attend an in-person hearing due to his mental health namely that attending alongside the respondent’s representative would cause significant psychological distress. He provided a copy of his Med 3 certificate certifying that he was unfit for work on the basis of work related stress for 1 month from 2 March. On 16 March his application was refused because the medical certificate did not say he was not fit to attend a tribunal hearing. In view of the large volume of correspondence the claimant was directed that “any documents that the claimant may wish to rely on at the [NAME] hearing should be submitted in a single paginated document with a table of contents”.

On 16 March the claimant advised that “due to my [NAME] medical condition and location in Mallaig in the Highlands, I am not able to travel to Edinburgh for the hearing on 20 March. I confirm that my written submissions and evidence bundle have already been filed for the Tribunal’s consideration. I therefore respectfully ask that the [NAME] application be determined on the written materials already before the Tribunal”.

On 18 March it was explained to the claimant that the application could not be determined in chambers on the papers, that the tribunal may consider any written representations, and he was reminded to submit his documents in a single paginated bundle. On 18 March the respondent’s representative agreed to create a joint bundle. On 18 March the claimant provided a consolidated bundle which the respondent included within the joint bundle. On 19 March the respondent’s representative shared her written submissions with the respondent.

5. On 19 March the claimant stated: “Please find attached my medical letter confirming that I am currently unfit to attend or participate in proceedings due to work-related stress”. He attached a GP letter dated 19 March which stated “I met [NAME] on 5 March and found that employment stressors are contributing to anxiety I can reasonably anticipate would be heightened by appearing in court.” It was understood that the claimant was not making an application for a postponement and that he merely sought to explain his non-attendance. In any event under Section 128 postponement of an [NAME] hearing may

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Page 3 only be made in special circumstances and the GP letter did not confirm that he was currently unfit to attend or participate in proceedings.

6. Rule 42 of the Employment Tribunal Rules of Procedure provides: “The Tribunal may consider any written representations from a party, including a party who does not propose to attend the hearing, if they are sent to the Tribunal and the other parties, and must do so if they are sent to the Tribunal and the other parties not less than 7 days before the hearing”.

7. Rule 47 provides: “If a party fails to attend or to be represented at a hearing, the Tribunal may dismiss the claim or proceed with the hearing in the absence of that party. Before doing so, it must consider any information which is available to it, after any enquiries that may be practicable, about the reasons for the party’s absence”.

8. In the circumstances it was not considered to be in furtherance of the overriding objective for the application for [NAME] to be dismissed on the basis of the claimant’s non-attendance given the medical evidence provided and it was instead considered to be appropriate to consider the claimant’s written representations. Relevant law [NAME]

9. Section 128 of the Employment Rights Act 1996 (ERA) states: (1) An employee who presents a complaint to an employment tribunal that he has been unfairly dismissed and—

(a) that the reason (or if more than one the principal reason) for the dismissal is one of those specified in—

(i) section 100(1)(a) and (b), 101A(1)(d), 102(1), 103 or 103A, or…

may apply to the tribunal for [NAME]. 10. In order to succeed in an application for [NAME], the claimant must show that it is ‘likely’ that the complaint of unfair dismissal will succeed (section 129 ERA).

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Page 4 11. This has been interpreted as requiring the Tribunal to be of the view that, when the case proceeds to a hearing, there is ‘a pretty good chance of success’ for the claim. This means more than just on the balance of probabilities ([NAME] v C Shippam Ltd [1978] IRLR 450) and involves a ‘significantly higher degree of likelihood’ than more likely than not (Ministry of Justice v Sarfraz [2011] IRLR 562). The burden on a claimant in an application of this type is therefore greater than it is at a full hearing. The respondent submits that the claimant must have a “pretty good chance” ([APPELLANT]) and something nearer to certainty than mere probability (Sarfraz).

12. The Tribunal hearing an application for [NAME] has a difficult task as it involves an assessment of the papers available and submissions made. The Tribunal requires to undertake a broad assessment on the material available. The application is to be determined expeditiously and on a summary basis. The Tribunal has to make as good an assessment as it feels able to do. The correct approach was summarised by Her Honour Judge Eady QC in Al Qasimi v Robinson EAT 0283/17 as follows: ‘By its nature, the application had to be determined expeditiously and on a summary basis. The ET had to do the best it could with such material as the parties had been able to deploy at short notice and to make as good an assessment as it felt able. The ET3 was only served during the course of the hearing and it is apparent that points emerged at a late stage and had to be dealt with as and when they did. The Employment Judge also had to be careful to avoid making findings that might tie the hands of the ET ultimately charged with the final determination of the merits of the points raised. His task was thus very much an impressionistic one: to form a view as to how the matter looked, as to whether the Claimant had a pretty good chance and was likely to make out her case, and to explain the conclusion reached on that basis; not in an over-formulistic way but giving the essential gist of his reasoning, sufficient to let the parties know why the application had succeeded or failed given the issues raised and the test that had to be applied.’ 13. The respondent submits per [NAME] v Chackp [2013] IRLR 610 “the application falls to be considered on a summary basis. The employment judge must do the best he can with such material as the parties are able to deploy by way of documents and argument…The employment judge is then required to make as good an assessment as he is promptly able…what this requires is a expeditious summary assessment”.

14. Where the main or principal reason for dismissal is that the claimant made a protected disclosure then the dismissal will be unfair under s103A of the 1996 Act. This is one of the categories of “automatic” unfair dismissal where the reason for dismissal alone renders it unfair.

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Page 5 15. Where, as it is here, [NAME] is sought in a whistleblowing case under section 103A ERA, the claimant must show that it is likely that the Tribunal will find that: a. the claimant made disclosure(s) of information to the employer; b. the claimant believed that it or they tended to show one or more of the matters itemised in s43B(1) ERA; c. the claimant’s belief in that was reasonable; d. the claimant reasonably believed that the disclosure(s) was or were made in the public interest; and e. the disclosure(s) was or were the principal cause of the dismissal.

16. The likelihood of establishing each of the necessary elements essential to the claim has to be considered on a preliminary basis at an [NAME] hearing. It follows that unless all aspects are established as likely the application for [NAME] cannot be upheld. The respondent submits that the claimant must demonstrate that he has a pretty good chance in respect of each element of his complaint: in summary that he made a protected disclosure and that the disclosure was the principle cause. Discussion & Decision Protected disclosure 17. The Tribunal first considered whether the claimant is likely to show that he made protected disclosure(s).

18. Section 43A ERA provides: “In this Act a ‘protected disclosure’ means a qualifying disclosure (as defined by section 43B) which is made by a worker in accordance with any of sections 43C to 43H.”

19. A qualifying disclosure is defined in section 43B ERA as “any disclosure of information which, in the reasonable belief of the worker making the disclosure, is made in the public interest and tends to show one or more of the following: a. … b. That a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject; c. … d. That the health or safety of any individual has been, is being or is likely to be endangered; e. …

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Page 6 f. That information tending to show any matter falling within any one of the preceding paragraphs has been, or is likely to be deliberately concealed.”

20. In [NAME] v London Borough of Wandsworth [2018] EWCA Civ 1436, at paragraphs 35 and 36, the Court of Appeal set out guidance on whether a particular statement should be regarded as a qualifying disclosure:

“35. The question in each case in relation to section 43B(1) (as it stood prior to amendment in 2013) is whether a particular statement or disclosure is a ‘disclosure of information which, in the reasonable belief of the worker making the disclosure, tends to show one or more of the matters set out in sub- paragraphs (a) to (f).’ Grammatically, the word ‘information’ has to be read with the qualifying phrase ‘which tends to show [etc]’ (as, for example, in the present case, information which tends to show ‘that a person has failed or is likely to fail to comply with any legal obligation to which he is subject’). In order for a statement or disclosure to be a qualifying disclosure according to this language, it has to have a sufficient factual content and specificity such as is capable of tending to show one of the matters listed in subsection (1).”

“36. Whether an identified statement or disclosure in any particular case does meet that standard will be a matter for evaluative judgment by a tribunal in light of all the facts of the case. It is a question which is likely to be closely aligned with the other requirement set out in section 43B(1), namely that the worker making the disclosure should have the reasonable belief that the information he discloses does tend to show one of the listed matters. As explained by [NAME] J in [NAME] at [8], this has both a subjective and an objective element. If the worker subjectively believes that the information he discloses does tend to show one of the listed matters, and the statement or disclosure he makes has a sufficient factual content and specificity such that it is capable of tending to show that listed matter, it is likely that his belief will be a reasonable belief.”

21. In [NAME] v Cantor Fitzgerald Europe [2020] ICR 236, the EAT confirmed these principles, stating:

’43...As the Court of Appeal in [NAME] v Wandsworth London Borough Council [2018] ICR 1850 made abundantly clear, in order for a statement or disclosure to be a qualifying disclosure, it has to have sufficient factual content and specificity such as is capable of tending to show breach of a legal obligation.

69. The tribunal is thus bound to consider the content of the disclosure to see if it meets the threshold level of sufficiency in terms of factual content and specificity before it could conclude that the belief was a reasonable one. That is another way of stating that the belief must be based on reasonable grounds. As

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Page 7 already stated above, it is not enough merely for the employee to rely upon an assertion of his subjective belief that the information tends to show a breach.’

22. The claimant’s ET1 states he made protected disclosures about harassment by [NAME] and maritime safety on 26 August 2025 (‘[NAME]’). He relies upon a text message sent to [NAME] which was included within the bundle in which the claimant states “I’ll bite my lip and avoid him [[NAME]] as much as possible…I’ll take extended leave then join [the new [NAME]’s] watch…Not my style to let people get to me but he’s managed to break me down”. Having regard to its full terms, the text does not appear to have sufficient factual content and specificity to be capable of tending to show breach of a legal obligation, endangerment to health and safety, etc and is therefore not likely to constitute a protected disclosure.

23. On 11 March 2026 the claimant stated to the tribunal that his grievance of 13 February “sets out the protected disclosures I raised prior to dismissal” concerning work place safety, procedural irregularities and serious welfare concerns. He attached his grievance “regarding the severe procedural failures, breaches of statutory duty, and inconsistent treatment associated with the [NAME] investigation” and stated “[[NAME]] hated the Irish...I was being brutalised by [him]….to pursue a disciplinary for “misconduct” while ignoring a documented medical crisis and known racial harassment…is a clear case of Disability and Race discrimination”.

24. In response to the respondent’s submissions the claimant stated to the tribunal on 19 March 2026 “I wish to clarify that my case is not based on a single communication. In addition to the 26 August 2025 message, I provided a written account on 27 August to [NAME] setting out specific incidents of bullying, etc by [NAME]. He attached to that a document that appeared to have been created on 27 August which stated: “I have had nothing but pressure and have felt bullied from [[NAME]]…I’ve dealt with racial slurs, sexual innuendoes and constant pressure to cater for his needs.”

25. However in the submission made with respect to his consolidated bundle of 15 March the only disclosure relied upon by the claimant is the text message sent to [NAME] on 26 August ([NAME]). The claimant therefore requires to confirm whether or not he is making an application to amend to include alleged disclosures made on 13 February and 27 March and if so this will require to be addressed in due course. Reason for dismissal 26. The Tribunal then considered whether the claimant was likely to show that he was dismissed because he made protected disclosures.

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27. As the respondent submits, the test for causation in dismissal causes imposes a higher standard than in detriment cases ([NAME] v NHS Manchester [2012] 64).

28. The claimant has less than 2 years’ service and accordingly has the burden of showing that the reason for the dismissal was the protected disclosure(s) ([NAME] v [COMPANY] 0068/13).

29. The principal reason for the dismissal is “a set of facts know to the employer, or it may be beliefs held by him, which cause him to dismiss the employee” ([NAME] v Mott, Hay and Anderson [1974] ICR 323).

30. According to the documentary evidence: a. The claimant was employed from 11 February 2025 as an able bodied seaman/ cook. The claimant asserts and the respondent accepts that his employment terminated on 23 February 2026. b. The claimant’s contract provides that the possession and use of alcohol on any vessel is prohibited. This is confirmed by the respondent’s drugs and alcohol policy which also provides that they must not board any vessel whilst under the influence. c. On 26 August the claimant sent a text message sent to [APPELLANT], Senior [NAME] Manager (‘[NAME]’) in which the claimant states “I’ll bite my lip and avoid him [[NAME]] as much as possible…I’ll take extended leave then join [the new [NAME]’s] watch…Not my style to let people get to me but he’s managed to break me down”. d. On 27 August the claimant created a document which stated: “I have had nothing but pressure and have felt bullied from [[NAME]]…I’ve dealt with racial slurs, sexual innuendoes and constant pressure to cater for his needs.” e. On 7 [NAME] was dismissed for gross misconduct. f. On the morning of 16 November a [NAME] was reported missing; CCTV footage showed the claimant and the [NAME] leaving the vessel together and returning separately on the evening of 15 November; the [NAME] was subsequently found dead in the harbour. g. On 10 December the claimant was suspended from work pending an investigation into allegations that he brought and consumed alcohol on board a vessel and consumed alcohol on shore on 15 November. h. [NAME], Senior [NAME] Manager (‘[NAME]’) was appointed as investigation officer. She took statements from the claimant on 16

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Page 9 December and 5 January, from [NAME] on 16 December, and [NAME] on 16 December and 5 February 2026. i. The claimant stated that he had not brought or consumed alcohol on the vessel or onshore but the deceased [NAME] had done so. j. [NAME], Senior [NAME] Manager stated that he overheard the claimant admit to the police that he had been drinking; that the CCTV footage shows them leaving the vessel under the influence. k. In his statement of 16 [NAME] stated he was not aware of alcohol being brought or consumed on the vessel. However he asked to make a supplementary statement on 5 February because he felt guilty and he said that all the [NAME] were drinking on board the vessel on 15 January. He signed that statement on 6 February. l. On 12 January 2025 [NAME] prepared an investigation report which found that “the information gather during this investigation indicates that it was very likely that [the claimant] consumed alcohol both on board the [vessel] and while ashore on 15 November. Witness statements from the [[NAME]] [NAME] and the senior [NAME] manager [[NAME]] described conversations being consistent with alcohol being brought on board and consumed in [the claimant’s] cabin prior to leaving the vessel. CCTV footage reviewed during the investigation is consistent with the witness accounts”. She recommended a disciplinary hearing. m. The claimant and [NAME] engaged in whatsapp communications during the disciplinary process. During that exchange the claimant stated that “Your statement has fucked me” and [NAME] replied “I can’t say sorry enough [NAME] believe me. I crumbled when I should of been strong”. n. On 30 December the claimant was invited to a disciplinary hearing in respect of the allegations. o. On 13 February the claimant submitted a grievance “regarding the severe procedural failure, breaches of statutory duty, and inconsistent treatment associated with the [NAME] investigation”. On 16 February the claimant advised that he would not be attending the disciplinary hearing in light of those concerns. p. On 17 February the disciplinary and grievance hearing was chaired by [NAME], [NAME] Manager (‘[NAME]’). He concluded that the allegations were well founded and he was dismissed for gross misconduct. The disciplinary and grievance outcome letter notes that whilst he was offered external support “an [NAME] referral was disappointingly missed” but the [NAME] appointment would not have occurred before 15 November; when the company was made aware of the allegations against [NAME] it took all reasonable steps to address his concerns; that the claimant had admitted drinking alcohol to the police and to [NAME]; and the CCTV footage was consistent with him having consumed alcohol.

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Page 10 q. On 13 March 2026 [NAME] was also dismissed for breaches of the drugs and alcohol policy.

31. There is a dispute between the parties as to the reason for dismissal which cannot be resolved with reference only to the documentary evidence. The purpose of today’s hearing is not to resolve that dispute (not least since oral testimony has not been heard) but to determine whether the claimant is likely to show that he was dismissed for making a protected disclosure. The claimant submits that “the documentary evidence demonstrates a clear link between the claimant’s protected disclosure and the subsequent dismissal”. This is not accepted. Having regard to the documentary evidence including the investigation report provided by [NAME] and the disciplinary outcome provided by [NAME] the claimant is not likely to establish (i.e. has no pretty good chance of establishing) that the reason for his dismissal was the alleged protected disclosures.

32. The claimant submits that “This disclosure [of 26 August] predates the disciplinary process and is relied upon as the starting point in the sequence leading to dismissal”. The likely starting point of the disciplinary process is the death of the [NAME] on 15 November.

33. The claimant submits that it can be inferred that [NAME] was put under pressure to change his statement from his whatsapp message that he “crumbled”. The likely reason that he “crumbled” was the reason given by the [NAME] himself namely because he felt guilty.

34. The claimant submits that a negative inference can be drawn from the following factors: the respondent’s knowledge of the claimant’s deteriorating mental health on 7 November and the failure to refer to [NAME]; discrepancies in a time stamp on [NAME]’s second statement; [NAME] signing his statement of 5 February on 6 February; discrepancies in the date of dismissal and his P60; discrepancies in his final pay; redactions or omissions from the SAR bundle. None of these factors considered in isolation or together suggest that the real reason for his dismissal was not breach of the alcohol policy but a prior protected disclosure.

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Conclusion 35. The elements of the claimant’s case accordingly cannot be said, on a broad assessment, to be likely to succeed. The application for [NAME] is therefore refused.

Date sent to parties: 27 March 2026