Employment tribunal remedies are relatively well known by most people with a vague understanding of employment law. One remedy which often falls under the radar, however, is interim relief. There is a school of thought that in light of COVID-19 and vast number of dismissals taking place, we are likely to see an increase in the number of interim relief applications. Now is a good idea for employers to understand what interim relief is, when it is available and how to respond to such an application when faced with one.
In a nutshell, an employment tribunal can order interim relief which requires the employer to reinstate a dismissed employee pending their final hearing. In some cases, the employee will be given their job back but most of the time they will simply be re-employed and placed on paid leave. With many tribunal cases now being scheduled for 2022 the advantages to the employee of a successful application for interim relief are considerable, as is the potential expense to the employer. Worryingly for the employer, even if the claim ultimately fails, they cannot recover the sums paid to the employee in the interim.
It is not all bad news for employers though, as interim relief is only available in very limited automatically unfair dismissal cases, specifically where the reason (or principal reason) for the dismissal was one of the following prohibited reasons:
- Trade union membership or activities.
- Trade union recognition.
- Health and safety activities.
- Protected disclosures (whistleblowing).
- The right to be accompanied by a trade union representative or fellow worker.
- Acting (or proposing to act) as an employee representative or pensions trustee.
Further, the application for interim relief must be made swiftly, within 7 days of the termination date or during the notice period. As interim relief is only available to those making an automatically unfair dismissal claim on one of the grounds listed above, they must present their ET1 for unfair dismissal before or at the same time as the interim relief application. Few prospective claimants may be this organised. Interestingly, interim relief cannot be granted in cases where the reason or principal reason for dismissal is redundancy, even if the employee was selected for redundancy on one of the prohibited grounds above rendering it automatically unfair.
Interim relief will only be granted if the claimant persuades the tribunal that they are “likely” to establish at the full hearing that the prohibited reason was the reason (or principal reason) for dismissal. The claimant does not have to show absolutely that they will win their case (which would be impossible in the absence of evidence) but that they have “a pretty good chance” of doing so, according to the EAT in Taplin v C Shippam Limited. This is a higher standard of proof than would even be required at the final unfair dismissal hearing.
If the projections are correct and we are likely to see an upturn in whistleblowing cases connected with COVID-19, it is conceivable that with this will come a swathe of applications for interim relief. Employers facing such an application should respond swiftly, setting out clearly in writing why all or part of the claim is not likely to succeed. Any employer in this situation would be best advised to seek legal advice as quickly as possible to avoid being caught at the wrong end of a costly award.