Could time be up for the Taplin test, asks Mark Benney
Under 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.
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
