In certain types of unfair dismissal case, including those involving public interest disclosures, a tribunal can grant the employee interim relief by making an order for the continuation of their employment pending final determination of the case. Interim relief can only be granted if the tribunal thinks that the claimant is “likely” to establish at a full hearing that the protected disclosure was the reason (or principal reason) for dismissal. Interim relief cases are rare, so the EAT’s view on the provision that relief will only be granted if the case is ‘likely’ to succeed is of interest.

Mr Sarfraz alleged that he had been dismissed for whistleblowing because he had made disclosures in good faith to his employer of a failure to comply with legal obligations. The employment judge granted an order for interim relief, thereby having the effect of continuing his employment until determination of his claim. The EAT upheld the employer’s appeal and the application for interim relief was dismissed.

The word “likely” [to establish that whistleblowing was the reason for dismissal] does not mean “more likely than not” (that is at least 51% probability), but connotes a significantly higher degree of likelihood. The employment judge had erred in failing to consider whether the claimant’s belief was reasonable that he was disclosing information that tended to show a breach of legal obligations, so his decision could not stand. On the evidence it was almost certain that Mr Sarfraz’s belief that there had been breach of legal obligations by the employer was not reasonable, since there appeared to be no breach of contract in the manner in which his grievances had been handed, which formed the basis of his claim.

Ministry of Justice v Sarfraz [2011] IRLR 562