New Law Journal | 13 May 2011 | www.newlawjournal.co.

uk

SPECIALIST LEGAL UPDATE 651

Employment

Ripe for a pasting?

Could time be up for the Taplin test, asks Mark Benney
IN BRIEF
Recent judgments have supported the awed twofold unfair dismissal interim relief test established by Taplin. Where should the bar of likelihood be set?

If successful, such an application may result in the reinstatement or re-engagement of the employee, or alternatively the payment of his salary pending the full hearing of his claim for unfair dismissal. As recent cases such as Watkinson (ET 1702168/2008 and 1702079/2009) have demonstrated, there is ample incentive for unfair dismissal claimants to allege that the reason for dismissal was, for example, the fact that protected disclosures had been made, because the statutory cap on compensation does not apply in such cases. Under ERA 1996, s 129, the application will succeed if it appears to the tribunal that it is likely that at the full hearing it will be found that the reason for the dismissal was one of the reasons given in s 128. The meaning of likely in this context was xed as long ago as 1978: Taplin v C Shippam Ltd [1978] ICR 1068, [1978] IRLR 450. The Taplin test The Taplin test is eectively twofold. First, has the claimant shown that he has

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nder the Employment Rights Act 1996 (ERA 1996), s 128, an employee claiming to have been unfairly dismissed may apply to the employment tribunal for interim relief if the reason or the principal reason for his dismissal was: activities relating to health and safety; performance of functions relating to trusteeship of occupational pension schemes; performance of functions as an employee representative or candidate; or the making of a protected disclosure.

a pretty good chance of succeeding in showing that the reason for dismissal was one of those designated by s 128? Secondly, and in any event, has the claimant shown that he has a signicantly greater than 51% probability of success? To the consternation of many (including the editors of Harvey) Taplin remains good law on this point. The most recent review of the authorities can be found in Ministry of Justice v Sarfraz [2011] UKEAT 0578/10/0702. The authors own challenge to Taplin failed in the Employment Appeal Tribunal (EAT) at the permission stage: Benney v Defra [2011] UKEAT 0911/10/0112. The most striking aws of the judgment of the EAT in Taplin, as delivered by Mr Justice Slynn (as he then was), are as follows: the EAT purported to uphold the industrial tribunal chairmans decision notwithstanding his adoption of an escalating analysis of the concepts of possible, probable and likely that was unsupported by the Shorter Oxford English Dictionary (1074C) and rejected by the EAT itself; the EAT also rejected in principle the chairmans use of a percentage-based approach (1074E); and although the EAT was unanimous in its approach to the legal analysis of likely, one of its members was of the view that the chairmans assessment of the evidence was perverse (1075G), and accordingly that an order for interim relief ought to have been made.

An alternative view The starting approach to the statutory word likely ought to be based on the propositions that (i) probable and likely are dictionary synonyms, and (ii) an outcome or a state of aairs may be probable or likely even if it has a less than 50% chance of eventuating. For proof of proposition (ii) one need look no further than the fact that we talk about the balance of probabilities: there can exist degrees of probability of the order of less than 50%. In an ordinary civil case proof of 49% probability results in losing the case; but where the test at an interim stage is has the claimant shown a pretty good chance of success?, why should proof of a 49% or 50% chance of success not lead to a ruling in the claimants favour? Recent challenges to the Taplin test have leant towards suggesting that likely in this context ought to mean a real possibility, a real prospect or a substantial prospect of success. See, for example, Raja v Secretary of State for Justice [2010] UKEAT 0364/09/1502 and Dandpat v The University of Bath and others [2009] UKEAT 0408/09/1011, [2010] EWCA Civ 305. I am with the Taplin EAT in rejecting those lower standards as too low in the context of interim relief. The suggestion of this article is that the pretty good chance of success test ought to stand alone; moreover, if the blunt instrument of percentage assessment is to be used, it ought to be recognised that a pretty good chance is capable of applying to any case

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where the claimant shows a greater than (say) 4045% chance of success. Where the claimant shows a greater than 51% chance of success it would be surprising in any event to see his claim for interim relief fail; where the employment judge assesses the chance of success at more than about 40% he ought to be required to give cogent reasons for refusing the application. Where an employment judge feels suciently condent to quantify the chances of success as precisely as 49% or 50% (current result: no order), in circumstances in which 52% or 53% might have got the claimant home, he ought to be required to justify such a ne weighing of the evidence. Such justication ought to involve some analysis of any evidence actually given and any documents actually considered. The mistake of the EAT in Taplin, I suggest, was to ignore the grey area between reasonable prospect (perhaps between 20% and 40%) and balance of probabilities plus (signicantly greater than 51%). In short, by rejecting the (perhaps over-ambitious) submission of John Hand that the appropriate test was a reasonable prospect of success the EAT in Taplin threw out the baby with the bathwater. What is not surprising about the decided

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dicult enough for claimants to satisfy the statutory likelihood test. As for the idea of irretrievable prejudice, it obviously cuts both ways. An employer might end up having to pay an unwanted employees salary for several months before a full hearing takes place; an employee might have to sell assets and/or relocate in order to survive the period between dismissal and full hearing without an income. Exceptionality The reason for the Taplin EATs endorsement of balance of probabilities plus appears to lie in the idea of exceptionality: It has, however, to be borne in mind that this is an exceptional form of relief granted pending a determination of a complaint of unfair dismissal (1073D). However, one looks in vain at ERA 1996, s 129 (or in the corresponding provision considered in Taplin, s 78 of the Employment Protection Act 1975) for any reference to exceptionality as a material consideration when construing the statutory word likely. Of course, claims to have been dismissed on the grounds of health and safety activity, union activity or protected disclosures (and related claims for interim relief) are unusual, but that is a dierent point.

terms of disposing of the case, it found itself half-heartedly refusing to interfere with the chairmans ruling below, notwithstanding that he had inexplicably decided that likely meant a degree nearer certainty than if probable had been used. Policy considerations Counsel for the employee in Taplin made some reference to policy as informing the correct approach to the test of likelihood. As remarked above, considerations regarding the nancial impact upon the respective parties of making (or not making) an order for interim relief are ultimately neutral because they cut both ways. What can be said about policy, however, is this. Setting the bar too high is likely to have a distorting eect on proceedings after the interim hearing, whatever its outcome. Specically, setting the bar at balance of probabilities plus might encourage employers to settle otherwise unmeritorious claims where an interim order has been made (following a necessarily incomplete and supercial examination of the evidence and the parties respective positions); and give successful employees unrealistic expectations as they move towards the full hearing, especially bearing in mind the absence of a statutory compensation cap in public interest disclosure cases. Similarly, unsuccessful employees are much more likely to be pressurised into accepting a settlement nearer the statutory cap. To such a claimant the knowledge that he failed at the interim stage by a margin as little (and as precise) as two or three percent is likely to be scant consolation. The way forward? Allowing employment tribunals to take a common sense approach to the pretty good chance of success test would have the eect of promoting the original statutory policy of ensuring the maintenance of the status quo in appropriate cases, whilst leaving the parties to make an objective assessment of the merits of their respective positions approaching the full hearing. Although the EAT is at liberty, in an appropriate case, to overturn its own previous decisions, this power is eectively limited to inconsistent decisions and to exceptional circumstances. It seems inevitable that proper scrutiny of Taplin will NLJ be left to the Court of Appeal. Chambers. E-mail: mark.benney@gmail.com Website: www.clarendonchambers.com
Mark Benney is a barrister at Clarendon

The mistake of the EAT in Taplin was to ignore the grey area between reasonable prospect and balance of probabilities plus
cases is that employers representatives have consistently sought to promote balance of probabilities plus as the applicable test by reference solely to employers own material interest. In Dandpat Lady Justice Arden accepted the EATs view that: if interim relief was granted the respondent is irretrievably prejudiced because he is obliged to keep the contract continuing and pay the claimant until the conclusion of the proceedings, and for those reasons it was a consequence which should not be imposed lightly. That line of reasoning can itself be traced back to Taplin (1073G). In Raja the employers counsel sought to raise the bar even higher, by imposing yet another exceptionality hurdle to be surmounted by claimants. Happily, that invitation was rejected by HHJ Birtles. The point has yet to be considered by the full Court of Appeal. The customary imbalance of resources between employees and employers in the employment tribunal means that it is Furthermore, the markers of exceptionality referred to by Slynn J in Taplin (1073D): the need for a union ocials certicate; the requirement to bring the application within seven days; the interim nature of the Tribunals consideration of the evidence; and the possibility that a ruling may need to be made on the basis of very little evidence, have no necessary or logical connection with the question of the proper degree of intensity with which the test of likelihood ought to be applied. Indeed, if there were such a connection, all four of the factors mentioned by Slynn J point towards a more liberal assessment of the merits and are arguably inconsistent with imposing a balance of probabilities plus test on the employee. Arguably, then, the real basis of the Taplin EATs decision was the idea of irretrievable prejudice to the employer. In