The Birketts employment team has observed an increase in the number of interim relief applications being made by employees when bringing a whistleblowing claim in the employment tribunal, in particular those being advised by trade union representatives.
As a result of the Government’s proposed workplace reforms, introduced under the recent Employment Rights Bill, we anticipate a further increase in the volume of interim relief applications in the future. The Bill is likely to expand the circumstances when interim relief is a potential remedy, making it available to employees who claim unfair dismissal due to ‘fire and rehire’, and to those who claim a protective award for an employer’s failure to collectively consult.
In addition, the Bill will amend the current rules for trade union recognition, meaning that trade union membership is likely to expand with more workplaces having a recognised trade union.
With the prospect of interim relief applications becoming more common in the future, employers should be aware of what it means and be prepared to act swiftly when it arises.
What is it?
Interim relief is a temporary order made by the employment tribunal in relation to certain claims, to continue employing the employee in the same or equivalent role until the final determination (or settlement) of the employee’s claim. Employers who refuse to reinstate or re-engage are required to pay the employee from the date of dismissal (or resignation in constructive unfair dismissal cases) until the final hearing of the claim. This can be expensive for the employer, particularly if there is a long wait for the case to be heard.
Note that even if the employer successfully defends the claim at a final hearing, the employee does not repay the costs of the interim relief incurred by the employer.
Interim relief is granted only if the employment tribunal decides that the claimant is ’likely’ to establish one of the claims outlined below. This has been interpreted as being more than just a reasonable prospect of success. The test is a high bar for claimants to reach, but it essential for employers to have their defence well prepared.
When can it be brought?
Interim relief is only available in certain limited circumstances, namely, where an employee claims that the reason (or principal reason) for their dismissal is for:
- making a protected disclosure (commonly known as whistleblowing);
- specified trade union membership or activity; or
- acting as a health and safety or working time representative (or related activities), as an occupational pension scheme trustee or as an employee representative for collective consultation purposes.
There is no requirement for an employee to have two years’ service to bring one of these automatically unfair dismissal claims, and this includes automatic constructive unfair dismissal claims (a resignation due to the above reasons).
An employee has a maximum of seven days from their termination date to make an application for interim relief and, for the dismissal-related claims listed above, the employee does not need to go through Acas early conciliation.
For employers, this means a notice of an interim relief hearing can land on your desk without any prior knowledge of the substantive tribunal claim, which is usually notified to employers via early conciliation.
The hearing
A one-day public preliminary hearing will be listed for the employment tribunal to determine the interim relief application, usually based only on written evidence.
The tribunal must give employers at least seven days’ notice of the hearing, which is significantly less notice than they would usually receive for a full hearing. In our experience, employers receive between nine days and two weeks’ notice. It is important that any such notice received is dealt with swiftly. Applications to postpone the hearing are only granted in exceptional circumstances.
Often, an employer will not have submitted their defence to the employee’s claim by this stage, so we would suggest both the defence and (usually) a witness statement is prepared to increase the chance of successfully defending the interim relief application. Both parties are also allowed to prepare a bundle of documents they wish to rely on in the hearing. Employers must consider what their key documents are, as this will not be a hearing of all the evidence.
All parties need permission from the tribunal to provide oral evidence.
Can employers go for costs?
As the same costs rules apply to these applications as apply more broadly to the employment tribunal, employers will not often be successful in obtaining their costs even if the tribunal has refused the claimant’s application for interim relief. So, this needs to be factored into the employer’s overall strategy.
What can employers do?
We would strongly encourage employers to clearly document their reasons and rationale for an employee’s dismissal, in both the dismissal letter and at the disciplinary hearing, where an employee may raise the above complaints. These documents can then be used as evidence to defend any application and claim.
In addition, a trade union representative is less likely to advise an employee to pursue such an application where there are clear written reasons for the dismissal, unrelated to one of the eligible automatically unfair reasons above, as it would reduce the chances that the employee would succeed in an application.
The Birketts view
Employers are advised to act promptly on receipt of an interim relief application and seek advice at the earliest opportunity, to put themselves in the best possible position to defend the application.
The content of this article is for general information only. It is not, and should not be taken as, legal advice. If you require any further information in relation to this article please contact the author in the first instance. Law covered as at January 2025.