By Sara Meyer & Richard Loxley
|Published 09 September 2026
In this case, the EAT confirmed that an employment tribunal considering whether a whistleblowing claimant has a "pretty good chance" of success at final hearing, such that interim relief should be granted, must make a summary assessment of the evidence before it. The existence of a factual dispute is not of itself determinative of this issue.
Under section 103A of the Employment Rights Act 1996 (ERA), a dismissal is automatically unfair if the sole or principal reason for dismissal is that the employee made a protected disclosure. Sections 128 and 129 ERA allow an employee to seek interim relief, which preserves the contract of employment for limited purposes pending the determination of the unfair dismissal claim at a substantive trial.
To obtain interim relief in a whistleblowing case, a claimant must show that it is likely the tribunal will find that a protected disclosure was made and that it was the principal reason for dismissal. Case law has interpreted "likely" to mean that the claimant has a "pretty good chance" of succeeding, a significantly higher threshold than the ordinary balance of probabilities.
Presidential Guidance on Applications for Interim Relief, which took effect on 22 June 2026, noted that there has been a significant increase in applications for interim relief, with each tribunal office now receiving as many as 20 applications per month. The Presidential Guidance also noted the rising use of AI in formulating such applications, many of which are very lengthy and accompanied by significant volumes of documentation. The Presidential Guidance therefore sought to explain the process and the relevant legal test to claimants, to assist them in deciding whether to make an application. (For further information on the Presidential Guidance, please see our earlier article.)
Mr Duffy was employed by BXTR 3 Ltd t/a House of Gods (BXTR) in its food and beverage team from 10 November 2025. Following an incident at the hotel on 25 November 2025, he alleged that he made a protected disclosure concerning fire escape doors, building security and resulting health and safety concerns. He was dismissed on 28 November 2025, and claimed that the reason for his dismissal was his protected disclosure. He also made an application for interim relief.
BXTR denied that Mr Duffy had made a protected disclosure. It contended that the decision to dismiss had already been taken on 22 November 2025 during Mr Duffy's probation period, because he was not meeting the required standards, although that decision was only communicated to him on 28 November 2025.
The employment tribunal noted that there were significant factual disputes concerning both whether Mr Duffy had made a protected disclosure and whether BXTR had decided to dismiss before the alleged disclosure. It therefore concluded that Mr Duffy could not demonstrate a pretty good chance of success, and refused to grant interim relief. Mr Duffy appealed.
The EAT allowed the appeal and remitted the interim relief application to the same tribunal for further consideration.
The EAT expressly endorsed paragraph 39 of the Presidential Guidance, which provides that if an employer identifies an apparently good reason for dismissal unrelated to the alleged protected disclosure, it will be difficult for a claimant to satisfy the "pretty good chance of success" test for interim relief unless they have clear evidence that the employer's stated reason was not the real reason for dismissal.
Having identified the factual issues in dispute between the parties, the tribunal in this case had erred in treating the mere existence of disputed facts as determinative.Interim relief applications are assessed urgently and on a summary basis. However, section 129 ERA requires the tribunal to make its best assessment, on the evidence before it, of whether the claimant is likely to succeed at the final hearing. The tribunal had failed to undertake that evaluative exercise in this case.
The EAT rejected Mr Duffy's argument that the tribunal's apparent failure to take into account a recording of a discussion between BXTR managers immediately after his dismissal was perverse. However, the fact that the tribunal had not referred in its reasons to a potentially important piece of contemporaneous evidence led the EAT to conclude that the tribunal had failed to give adequate reasons for its decision.
The decision in this case emphasises the high bar that applies in interim relief applications, but also makes clear that the mere existence of factual disputes between the parties will not necessarily defeat an application.
In accordance with the Presidential Guidance, interim relief hearings are generally limited to three hours (one hour for reading, 30 minutes of submissions for each party, and a further hour for deliberation and oral judgment), and it would be very rare for the tribunal to hear any oral evidence. Employers responding to interim relief applications should therefore ensure that any contemporaneous documentary evidence clearly supporting their position as to the timing of and reason for the dismissal is before the tribunal. That is the evidence on which the tribunal will base its impressionistic assessment of whether the claimant has a pretty good chance of success.
