EET rejects interim relief application in whistleblowing case

Interim relief application rejected

The EET has handed down its first substantive decision on an interim relief application in a whistleblowing case, in Passey v Tufton Management Limited (26/59) (06.10.26).

This follows the EET’s earlier decision adjourning the listed hearing (see EET: interim relief whistleblowing change may “create a perfect storm” – Coren Law).

The Complainant is seeking compensation for alleged unfair constructive dismissal and automatic unfair dismissal because of making an alleged protected disclosure.

The Complainant, a company secretary, had allegedly made at least one protected disclosure relating to whether a Suspicious Activity Report (SAR) should have been filed.

The Tribunal noted (at § 13) that the fact that the Complainant had resigned did not prevent her from making an application under s 118(A).

But her interim relief application has been dismissed. Her substantive claim will now go forward to a differently constituted Tribunal.

The law having changed in April 2025 (and this being the first such case), the Tribunal helpfully set out guidance for practitioners.

Guidance on interim relief applications

The Tribunal held (at § 9) that interim relief applications would be subject to: “close scrutiny”. This was because (as explained at § 5):

“A Complainant who successfully applies for Interim Relief under [s]118A of the Employment Act 2006, can seek to be re-engaged or reinstated or otherwise to be entitled to be paid salary as if still an employee on suspension – such payment continuing until settlement or the conclusion of the proceedings”.

Any monies paid during such period would be irrecoverable: Initial Textile Services v Rendell (UKEAT/383/91) (at p. 3).

With previous whistleblowing cases taking 3 years, the Tribunal noted (at § 8) that Respondents: “in such cases could have been exposed in each case to reinstatement or re-engagement or to pay the respective Complainants £100,000 – £200,000 as salary for no work in return”.

The Tribunal considered s 118A Employment Act 2006, as brought into force in April 2025.

Section 118(A)(2) imposes a 7-day time-limit, after the effective date of termination, to file an application for interim relief.

Section 118(B)(1) provides:

“This section applies where, on hearing an employee’s application for interim relief, it appears to the Tribunal that it is likely that on determining the complaint to which the application relates the Tribunal will find that the reason (or if more than one the principal reason) for the dismissal is that the employee made a protected disclosure”.

The Tribunal held (at § 18):

“… for the purposes of Section 118 B, the word “likely” (to succeed) means that the applicant must have a pretty good chance of success[*] and at a burden of proof level of close to certainty [**]”.

* see Taplin v C Shipham Ltd [1978] ICR 1068 (cited at § 41)

** see Ministry of Justice v Sarfraz (2011) IRLR 562 EAT (cited at § 42).

As to whether oral evidence should be required, the Tribunal held (at § 34):

“… it makes good sense for the default position to be that no oral evidence should be required because otherwise the Tribunal would have to devote much more time to the Interim Relief application with witness evidence and then at the ultimate Hearing”.

As to the procedure to be adopted, the Tribunal held (at §§ 35-37):

“35. … the Tribunal must use its crystal-ball to determine what the outcome is likely to be at the ultimate Hearing once the issues have been thoroughly canvassed with all necessary skeleton arguments, witness statements, cross-examination, legal authorities and closing submissions.

36. However, the crystal-ball is not being used by the panel, as presently constituted, to predict the outcome which it would reach at the full subsequent Hearing. The accepted procedure in England & Wales is that the ultimate Hearing must involve an entirely different panel.

37. … the Tribunal must be mindful that its ruling will be based on impressions rather than proven facts. … The ultimately appointed panel needs to be able to approach the proceedings unfettered by findings of fact. None are made.”

Disposal

The Tribunal summarised (at § 62) the points which the Complainant had to prove to obtain interim relief to the above standard:

” … on the higher standard of proof of near certainty:

• What information was disclosed?
• Proof of her reasonable belief that the information tended to show one or more of the matters set out in [s] 50 of the Act.
• That her disclosures were made in the public interest
• That her disclosures (or one of them) was or were the reason or principal reason for constructive dismissal, as alleged.”

The Tribunal considered evidence filed by the Complainant and 11 points of evidence presented by the Respondent as to why the above points were not made out.

The Tribunal concluded (at §§ 65-66):

“65. At this stage, on a summary assessment, the Respondent had raised sufficient doubt by its witness evidence but more particularly by Ms Widdett’s submissions that, jointly or severally, because of these eleven points, the Tribunal could not be satisfied that Miss Passey had a pretty good chance of success or anything close to approaching near certainty.

66. Miss Passey, having not reached an appropriate level of burden of proof on the merits, her application for Interim Relief is dismissed.

67. The Tribunal directs that (in the absence of any request for a Review or an Appeal to the High Court) the Clerk appoints a new panel so that the appointed replacement Chair can proceed with the formalities to bring the case on for a Hearing on the merits as soon as reasonably practicable”.

Tipping-off & disclosure

Passey is also of note for some comments relating to the complex area of tipping-off, as it relates to disclosure. At § 49, the Tribunal said this:

“The Chairman… was satisfied that non-disclosure in appropriate circumstances before this Tribunal could not be justified by application of the laws regarding tipping-off. The Tribunal is not making a ruling on this, but a Tribunal may consider that a protected disclosure might, in some circumstances, be made available only to the panel and to the parties (but not for wider publication in any public document)”.

A closely related point was discussed, and guidance given, in the High Court in P Ltd & Q Ltd v R Ltd (24.11.20) (Deemster Corlett at §§ 33-39) (this case was not before the Tribunal).

Note for practitioners: The EET has rejected the first application for interim relief in a whistleblowing case, under s 118A Employment Act 2006, since the law changed in April 2025. The EET has offered guidance on the burden of proof and applicable test. The Tribunal also considered tipping-off and disclosure.

Disclaimer: professional advice should be sought before applying any information in a given case.

For advice on litigation relating to Isle of Man civil procedure, or to Isle of Man employment and equality law, contact Coren Law.

See also Coren Law’s Isle of Man civil procedure portal: Click On | Coren Law.

Photo credit: Tima Miroschnichenko