Employment Flash - 23rd July 2010

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What does "likely" mean?

Dandpat v (1) The University of Bath (2) TUV Product Services Ltd [2009] UKEAT 0408 09 LA

Although decided in November 2009 this decision at a preliminary hearing by Underhill P has only just been published on the EAT site. Amongst other claims, D made a whistleblower claim and a constructive dismissal claim.

D appealed a refusal by the ET to make an interim relief order pursuant to s.129(1) ERA. The critical passage of s.129(1) requires that interim relief will only be granted where on the application it appears to the ET that "it is likely" that when the complaint is substantively determined the ET will find the dismissal was for one of the reasons specified in s.129(1).

The meaning of 'likely' in relation to an application for interim relief was set down in Taplin v C Shippam Ltd [1978] IRLR 450: "pretty good" chance of succeeding on final application, which involves an applicant showing a higher degree of certainty on an interim application than just a reasonable prospect. D invited the EAT on a full hearing to re-consider Taplin in the light of SCA Packaging Ltd v Boyle [2009] IRLR 746: (for the purposes of paras 2(2) and 6 of Schedule 1, DDA) "could well happen" rather than "probable" or "more likely than not", but 'likely' has several shades of meaning.

D maintained that SCA was a less demanding benchmark. The EAT declined the invitation to revise Taplin and thought there were good reasons for setting the test for interim relief comparatively high: the respondent is irretrievably prejudiced because he is obliged to treat the contract as continuing and pay the claimant until the conclusion of the proceedings.

and another thing...

Settlement without admission of liability with alleged primary discriminator prevents pursuit of aider as to allow the claim would involve findings being made against the alleged primary discriminator...

Butt v Bradford Metropolitan District Council [2010] UKEAT 0210 10 ZT

B settled his claim with the Governors of the school but continued with a claim against BMDC under s.33 RRA (aiding unlawful acts). The ET struck the claim out.

B would need to show that BMDC had knowingly aided the Governors to do some act and that the act was unlawful. But B had settled with the Governors on the basis that no admissions were made. To proceed against BMDC would require proof of the self-same allegations. There was no certainty whether or for who the Governors would give evidence.

The ET had taken the view that it was contrary to public policy to allow the claim to continue as it would negate one of the effects of the settlement with the Governors. The EAT concurred: how could the Tribunal possibly make findings against the Governors as primary discriminators if they were not a party to the proceedings and had settled their claim? In Hallam v Cheltenham BC [2001] 1 WLR 655 Lord Millett repeated an observation he had made in Anyanwu v South Bank Student Union [2001] 1 WLR 638 to advise, encourage, incite or induce someone to do an act is not to aid him to do the act, aiding requires a much closer involvement in the actual act.

Although the EAT could envisage situations where the principal alleged discriminator was no longer a party or likely to give evidence (e.g. death, liquidation, dissolution) it concurred with the ET that it would be an abuse to allow an aiding claim to proceed in circumstances where the claimant has settled the claim against the primary alleged discriminator without any admission of liability. The risk of a finding against the Governors in their absence created an overwhelming unfairness.