The Dispute Is Not the Answer: Interim Relief After Duffy

Across Great Britain the Employment Tribunals used to receive about twenty applications for interim relief a year. Most offices now receive twenty a month. Issuing joint guidance in June, the Presidents put the change down to two things: a great deal more documentation, and artificial intelligence.

The emergency remedy has become popular. The system's answer is a document explaining, courteously, why it usually fails.

That document is the Presidential Guidance on Applications for Interim Relief, in force from 22 June 2026. Its paragraph 39 has now been endorsed by the Employment Appeal Tribunal, in a judgment allowing an appeal against a tribunal which had done roughly what a quick reading of paragraph 39 invites.

Eighteen days

Duffy v BXTR 3 Ltd t/a House of Gods [2026] EAT 119 concerns a hotel worker who lasted eighteen days. Mr Duffy joined the food and beverage team on 10 November 2025. The police were called to the premises on 25 November, and he says he told his manager that evening that fire escape doors were being left open and building security compromised. He was dismissed on 28 November.

The respondent's answer ran on two tracks. No disclosure was made at all. In any event, it said, the decision to dismiss had been taken on 22 November, during probation, on performance, and merely communicated six days later.

The Glasgow tribunal refused interim relief. It recorded significant factual disputes and issues of credibility to resolve, both on whether a qualifying disclosure was made and, crucially, on whether the decision to dismiss pre-dated any disclosure. At paragraph 8 it held that there were fundamental issues of fact and credibility in dispute and that, “for that reason”, the claimant could not be said to have a pretty good chance of succeeding at the full hearing.

Three words carried the appeal.

Two propositions that look identical

Recorder Fraser Butlin KC states the law without controversy. “Likely” in s.129(1) of the Employment Rights Act 1996 means a pretty good chance of succeeding, connoting a significantly higher degree of likelihood than more likely than not: Taplin v C Shippam Ltd [1978] ICR 1068, as read in Ministry of Justice v Sarfraz [2011] IRLR 562. The bar sits high for policy reasons, since an order irretrievably prejudices a respondent who must treat the contract as live and go on paying until the claim is determined: Dandpat v University of Bath UKEAT/0408/09. It must be cleared on every element of the claim, not merely on the reason for dismissal.

Then, at paragraph 10, the endorsement: “I would endorse that paragraph of the guidance.” Paragraph 39 says that where an employer identifies an apparently good reason for dismissal unrelated to any protected disclosure, that is usually something for the final hearing on full evidence, and that it is difficult to see how a claimant shows a pretty good chance “unless they have clear evidence that this was not the real reason”.

Eight paragraphs later the appeal succeeds, because the tribunal “took the existence of factual disputes as determinative of the application”.

Read quickly, the two passages conflict. Read properly, they answer different questions. Paragraph 39 predicts an outcome: in the ordinary run of cases a claimant facing a plausible alternative explanation will lose, absent clear evidence displacing it. It says nothing about how the tribunal is to get there. The Glasgow tribunal took the prediction and used it as a method, identifying the dispute, observing that resolving it would require a final hearing, and stopping.

That distinction is the whole of the judgment. Identifying what is in dispute is not the same exercise as assessing how the dispute looks on the available material. The first produces a list. The second produces a judgment, which is what s.129(1) asks for.

The respondent's argument was not a silly one. Both core questions — whether anything was disclosed, and when the decision was taken — turn on whose account is preferred, and no oral evidence would be heard. Counsel submitted that refusal was on those facts the only outcome available. Anyone who has drafted one of these against the seven-day clock will feel the pull of it: on a summary assessment, “the facts are disputed” and “the claimant has not shown a pretty good chance” can read as the same sentence.

They are not the same sentence: a tribunal which assesses and refuses has decided something about this claimant. A tribunal which stops at the dispute has decided that this class of application cannot be assessed at all, which is a proposition about the remedy rather than about the case in front of it. Since most s.103A dismissals are met with an alternative explanation, that would empty s.128 of most of its content.

An impression, not a finding

What the assessment is meant to look like was set out by HHJ Eady QC, as she then was, in Al Qasimi v Robinson UKEAT/0283/17/JOJ. The tribunal does the best it can with material the parties have managed to deploy at short notice, avoids findings which would tie the hands of the tribunal charged with the merits, and forms a view which is “very much an impressionistic one”, giving the essential gist of its reasoning rather than an over-formulistic account of it. Wollenberg v Global Gaming Ventures (Leeds) Ltd UKEAT/0053/18/DA calls the same exercise a broad assessment by a judge who cannot be expected to grapple with vast quantities of material.

The Guidance builds the hearing around that description. Three hours by video before an employment judge sitting alone: an hour to read, half an hour of submissions each way, an hour to decide and give short oral reasons. Rule 94 of the 2024 Rules forbids oral evidence unless the tribunal directs otherwise, which it rarely does.

That is why disputed facts cannot dispose of the application. On this model almost everything is disputed and nothing is being found. Disputed facts are the material from which the impression is formed.

What clear evidence looks like

Paragraph 39's escape route is clear evidence that the employer's stated reason was not the real one. Duffy supplies a working example, in the second ground to succeed.

Mr Duffy had a transcript of a recorded discussion with the respondent's managers immediately after his dismissal, and scheduling which showed him rostered into December. The tribunal's reasons do not mention the recording. Recorder Butlin holds that it was an important piece of evidence which needed to be weighed in the balance, and that the failure to address it left the reasons inadequate.

Note what the EAT did not hold. The perversity ground failed. How far the recording goes to the reason for dismissal is “moot”, it is not the smoking gun the claimant suggested, and the threshold in Yeboah v Crofton [2002] EWCA Civ 794 was nowhere near met — quite apart from the difficulty that a tribunal which reached no conclusion cannot have reached a perverse one. The point is not that the material was decisive. It is that the material was contemporaneous, documentary, and capable of undercutting an account of a decision taken on 22 November, so it had to be weighed and shown to have been weighed.

That is the practical shape of paragraph 39. Clear evidence, at a hearing which takes no oral evidence, means documents made at the time. Two untested accounts of the same conversation are the dispute, not the answer to it. A roster, an email, a recording, a dismissal letter giving a reason different from the one now advanced: that is the currency.

Winning the appeal is not winning the application

Mr Duffy asked the EAT to determine the application itself: his argument was good on its face. The hearing is summary and paper-based, so the EAT suffers no disadvantage against the tribunal; both parties invited disposal; the material was all in the papers; and his final hearing was weeks away. The respondent wanted substitution too, to save costs, though it accepted that ground 1 succeeding would mean remission.

Jafri v Lincoln College [2014] EWCA Civ 449 allows the EAT to substitute only where the result flows from findings the tribunal has already made, supplemented at most by indisputable facts. The error found under ground 1 was precisely that no summary assessment had been carried out, so substituting would have required the EAT to carry one out itself. Wollenberg had reached the same conclusion on the same reasoning, and remitted to a differently constituted tribunal. Mr Duffy asked for fresh eyes and did not get them: his application goes back to the same judge, who has read the material already and has a short assessment to make.

Practical points

For claimants, a refusal which recites the conflicts and goes no further is now vulnerable on two fronts, worth pleading separately. The first is error of law in treating the disputes as determinative. The second is inadequate reasons where a central document goes unmentioned. Mr Duffy, a litigant in person, ran both against counsel and won on both.

For respondents, paragraph 39 remains the strongest card in the pack, but it is a card about substance. Identify the apparently good reason, put the material which supports it in front of the judge, and show why the claimant's documents do not clearly displace it. A submission which does no more than point at the conflict now invites the error the EAT has just corrected.

Whichever side you are on, choose your documents before the tribunal chooses them for you. Paragraph 28 of the Guidance warns that where the material exceeds what can be read in the time allocated, the judge will make the parties identify the most important documents and will then look at nothing else. One hour of judicial reading is the real page limit.

Neither side needs to guess what the other will do, and neither needs the other’s cooperation. Rankings below run from 4, a party’s best available outcome, down to 1.

And where an employer says the decision was taken earlier and communicated later, watch the effective date of termination as well as the reason. The seven days under s.128(2) run from the effective date and cannot be extended by anyone. An employer arguing that it decided on the 22nd is arguing about causation; it is not moving the clock.

Mr Duffy was dismissed on 28 November 2025. The tribunal refused interim relief by a judgment sent to the parties on 14 January 2026. The EAT allowed his appeal on 10 August 2026 and sent the application back for the summary assessment which should have been made at the outset. His final hearing was listed to begin on 7 September.

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