Hancock v Ter-Berg and another UKEAT/0138/19/BA

Appeal against the ET’s decision on the Claimant’s interim relief application before his employment status was conclusively determined. Appeal dismissed.

The Claimant, a dentist, raised concerns about another dentist engaged by the Respondents. Instead of meeting with the Claimant to discuss his concerns, the Respondents terminated his contract without giving any reason and gave him three months' pay in lieu of notice. The Claimant issued proceedings in the ET, claiming that he had been unfairly dismissed for making a protected disclosure; he also applied for interim relief pursuant to section 128 Employment Rights Act 1996 ("ERA") and sought a continuation of his employment pending final determination of the case under section 129 ERA. At the interim relief hearing, the ET, in rejecting the Respondents' assertion that the claim fell at the first hurdle because the Claimant was not an employee, was satisfied that the Claimant was likely to succeed in his claim, and that the reason or principal reason for his termination was that he had made protected disclosures. The Respondents appealed on the ground that the ET had erred in entertaining the application for interim relief before first concluding that the Claimant was indeed an employee.

The EAT held that the "likely to succeed" test applied to all elements of the complaint of unfair dismissal for one of the proscribed reasons that could properly be the subject of an application for interim relief, and that the ET had not erred in applying that test to the question of employee status.


Published: 12/11/2019 10:50

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