Does 'likely' (in the context of the threshold for interim relief under s129(1) ERA 1996) simply mean 'more likely than not'?
No, held the EAT in Wollenberg v Global Gaming Ventures.
Under s128 ERA, a Claimant can seek an order for interim relief if they present their ET1 within seven days of dismissal and can show that it is 'likely' they will prove, at a full merits hearing, that a protected disclosure was the principal reason for dismissal. If interim relief is granted, a tribunal will order that the contract of employment stay in force for certain purposes, essentially guaranteeing the Claimant receives their salary until determination of the full merits hearing, win or lose.
Mr Wollenberg was summarily dismissed for gross misconduct following a series of purported protected disclosures. He brought a claim for automatic unfair dismissal for whistleblowing and sought interim relief. He lost the application, and appealed.
In the course of dealing with the appeal, the EAT confirmed Taplin v Shippam, stating that the threshold test of 'likely' under s129(1) ERA is significantly higher than 'more likely than not.' In determining whether the threshold is met a tribunal should ask itself whether the Applicant has established "a pretty good chance of succeeding in the final application to the tribunal."
Thanks to Georgina Churchouse for preparing this case summary.