Interim relief

WHAT IS INTERIM RELIEF?

  • Interim relief, which has its origins in trade union law, is a temporary remedy open to employees who claim to have been dismissed for one of a number of inadmissible reasons.
  • If an interim relief application is successful, its effect is to preserve the status quo until the hearing of the unfair dismissal complaint – putting the employee back on the payroll.
  • An interim relief order will only be made if it appears to a tribunal that a complaint is ‘likely’ to succeed.
  • Such an order can be for reinstatement, re-engagement, or (more likely) for the employer to continue paying the employee’s wages and other benefits under the contract until the full dismissal claim has been heard.

INTERIM RELIEF AND COVID-19

  • Interim relief - an immediate financial remedy for employees dismissed for very specific reasons - has traditionally only rarely been sought (and granted) due to the limited circumstances in which it is available (see below).
  • During the COVID-19 pandemic however, such applications may become more popular as employees return to work and raise health and safety concerns and are dismissed, especially as a whistleblowing dismissal is one where interim relief can be claimed. Anecdotally, there is already evidence that this is happening.
  • A 2020 Resolution Foundation survey found that more than a third of employees back in the workplace in September 2020 had an ‘active concern’ about COVID-19 transmission at work, despite the steps most employers have taken to make workplaces COVID-secure. See also Whistleblowing during COVID-19 from the whistleblowing charity Protect.
  • COVID-19 has also led to an increase in union activities in response to employers’ measures (or the lack of them) during the pandemic.
  • The long delays currently being experienced in the tribunal system may also make interim relief applications increasingly attractive to employees as a way of attaining financial security pending a full hearing - as applications must be heard ‘as soon as practicable’.
  • In August 2020, a tribunal, in Morales v Premier Fruits (Covent Garden) Ltd, ordered the reinstatement of an employee claiming unfair dismissal for using a trade union to bring his grievance over COVID-19 measures his employer had taken (a 25% pay cut and an alleged lack of PPE).

WHAT TYPES OF DISMISSAL CAN TRIGGER AN INTERIM RELIEF APPLICATION?

  • The circumstances in which an interim relief application can be made are specifically, and narrowly, prescribed by legislation (s. 128(1) of the Employment Rights Act 1996 and s. 161(1) of the Trade Union and Labour Relations (Consolidation) Act 1992).
  • An application may only be made if the reason or principal reason for dismissal is alleged to be one of the following:
    • the carrying out of activities as a designated health and safety employee or performance of any functions as a health and safety representative
    • the performance of any functions or activities as a working time workforce representative or candidate
    • the performance of functions as the trustee of an occupational pension scheme
    • the performance of any functions or activities as a collective redundancy or TUPE representative or candidate
    • whistleblowing
    • the interference with trade union recognition or collective bargaining or balloting
    • blacklisting, or
    • on grounds relating to trade union activities or activities – here the applicant must also provide a certificate signed by an authorised union official to certify his or her membership or proposed membership of the union, and that there appears to be reasonable grounds for alleging the dismissal was for the prohibited reason
  • Interim relief is not available:
    • in cases of selection for redundancy for any of the above reasons, or
    • where an employee refuses to return to the workplace or takes other measures in circumstances of danger (see ERA, s. 100(1)(d) and (e)) – but if an associated disclosure to an employer has been made and it qualifies as a protected disclosure, this may open a route to interim relief via whistleblowing.

WHAT ARE THE REQUIREMENTS FOR BRINGING AN INTERIM RELIEF APPLICATION?

  • The applicant needs to be an ‘employee’ - ‘workers’ cannot benefit from interim relief.
  • There is no need for two years’ qualifying service as there is in a normal unfair dismissal claim.
  • The claim must be brought within 7 days of the effective date of termination. If the employee is working their notice, they can make the application during it.
  • The 7-day time limit is strict - it cannot be extended.
  • There is no requirement to go through the Acas Early Conciliation procedure.

WHAT WILL A TRIBUNAL CONSIDER IN AN INTERIM RELIEF APPLICATION?

  • Tribunals are required to consider an interim relief application ‘as soon as practicable’.
  • An applicant must persuade the tribunal that it is ‘likely’ they will succeed – in all elements of their claim – in the final hearing in proving that the reason for their dismissal was the inadmissible reason they rely on. The meaning of ‘likely’ has been considered in the following cases:
    • In the 1978 case of Taplin v C Shippam Ltd the EAT held that in an application for interim relief, the tribunal should ‘ask themselves whether the applicant has established that he has a “pretty good” chance of succeeding in the final application to the tribunal’. It also made clear that the standard of proof is higher than that of a reasonable prospect of success: ‘we do not consider that Parliament intended that an employee should be able to obtain an order under this section unless he achieved a higher degree of certainty in the mind of the tribunal than that of showing that he just had a “reasonable” prospect of success’.
    • In the 2011 case of Ministry of Justice v Sarfraz the EAT held that ‘likely’ ‘does not mean simply “more likely than not” - that is at least 51% - but connotes a significantly higher degree of likelihood’.
  • If the tribunal agrees with an application, it must invite the employer to reinstate or re-engage the employee on ‘not less favourable’ terms and conditions pending the final determination.
  • If the parties agree, the tribunal can make an order to that effect. Failing agreement, unless it determines that the employee has unreasonably refused an offer of re-engagement, the tribunal will then make an order for the continuation of employment which preserves pay and other benefits and continuity of employment.
  • An applicant who successfully obtains interim relief - but does not succeed at the final hearing - does not have to repay the salary he or she received, even if no work was done for the employer between the interim relief and the final hearings.

HOW SHOULD YOU RESPOND TO AN INTERIM RELIEF APPLICATION?

  • In short, speedily!
  • It is important to prepare as detailed an ET3 response as possible and a detailed witness statement from, ideally, the dismissing officer, as to why the employee was dismissed, with relevant evidence.
  • This should not go into minute detail and comprise hundreds of pages of evidence because the tribunal is not going to approach this as a full-blown hearing. However, what it needs to understand is whether it is likely that the claimant will succeed in their claim.
  • Too often employees are facing, say, redundancy and suddenly make a protected disclosure during consultation. If the business can show from board minutes and emails that this was a genuine redundancy process, that there was consultation and there was a fair process, the fact the employee made a protected disclosure is not going to see the granting of interim relief.
  • However, if there was a suspicion the employee was about to make a disclosure, there are emails internally to that effect, or if an alternative role is withdrawn once the disclosure is made, this may lead to interim relief being granted.