Understanding interim relief and the challenges it poses to employers

The Employment Team at Stone King have recently supported two separate clients who received applications for interim relief. These are rarely used but effective and disruptive applications that ex-employees can make in an employment tribunal. As they are rarely applied for, many employers are unaware that employees can make these applications and the risks involved with them.

What is interim relief?

Interim relief is a remedy available to employees who believe they have been unfairly dismissed for specific reasons, including making a protected disclosure (whistleblowing), union membership, or activity or acting as a specific representative, such as for health and safety purposes or acting as a TUPE employee representative. Additionally, the proposed Employment Rights Bill intends to extend interim relief to also cover a situation where they have been dismissed in a ‘dismissal and re-engagement’, also known as ‘fire and re-hire’, situation.

The employee can only make the application after they have been dismissed, but must make the application within seven days of the dismissal. Due to the short timeframe, the claimant does not have to engage in ACAS Early Conciliation. This means that, often, the first an employer will be aware of one of these claims is when they receive the paperwork from the tribunal.

If successful, the employee remains on full pay until the final resolution of the unfair dismissal case, which can take many months, even years. Importantly, the employer cannot recover these payments, even if the employee ultimately loses their unfair dismissal claim. 

Interim relief hearing – the process

Once the tribunal is in receipt of the application for interim relief from a claimant, they will set a hearing as soon as practicable and the employer will be given at least seven days' notice. In practice, although this is the minimum, the hearing date is rarely set for much longer than seven days after the notice. 

Despite the short timeframes involved, the tribunal will only grant a postponement of the hearing in “special circumstances”, meaning that, in most situations, the employer will have no choice but to deal with the application.

Interim relief hearing

At the actual hearing itself, documents relied upon, written submissions and often witness statements will be required as evidence. Generally, the witnesses will not have to give oral evidence, so the individuals who give witness evidence don’t necessarily have to be available for the actual hearing itself.

The tribunal, once it has heard the evidence, will determine whether to grant an application for interim relief or not. The test for them to make this determination is that the employee would be “likely” to establish at a full trial that the reason, or principal reason, for their dismissal was for one of the specific prohibited reasons.

“Likely” means more than just a reasonable prospect of success but, at the same time, doesn’t need to be almost a certainty that they will succeed. The test also applies to all elements of the claim so, if there are jurisdictional challenges to the claim, it also needs to be likely the employee will succeed on those elements as well.

Potential orders and remedies

If the tribunal determines the “likely” test is met, it will first ask the employer if it is willing to reinstate the employee or re-engage them in a different job. If the employer refuses, then the tribunal will instead grant an order for the employment contract to continue, essentially meaning the employee receives full benefits until the final hearing.

Impact

Interim relief is rarely applied for and is most common in trade union cases, rather than in whistleblowing cases. Additionally, the “likely” test is a high one, meaning that most cases aren’t successful.

However, despite this, interim relief is an extremely effective tool for employees. Whilst the chances of success for the employee are relatively low, the potential consequences of the application being granted are very damaging for employers. Depending on what area of the country the employer is located in, this could mean the employee continues to be paid for years before a final hearing takes place.

The amount of work required is also significant. Effectively, an interim relief hearing can be seen as a condensed version of an entire employment tribunal but, instead of having potentially a couple of years to prepare, you may only have seven days to prepare. This can therefore cause severe disruption.

Practical steps

The most effective element of the interim relief application from an employee’s perspective is that it can catch the employer off guard, therefore, we would recommend the following practical steps:

• Try and identify cases where you think interim relief might be a possibility. If the case involves a union representative or there are whistleblowing allegations, there could be this chance.
• Try and be proactive for cases where you have identified a risk. Try and start to gather all relevant documentation in case that claim arrives, it will make things much easier if done when there is not the time pressure of an upcoming interim relief hearing.
• Ensure you get legal support as soon as possible. Anything that can be done to try and save time down the line is worth doing, this is one of those situations where hours can make all the difference.
• Have a clear view of your approach from the start, if you are likely to try and settle the claim, then trying to settle before the hearing is likely to be the best outcome. However, be realistic about what you would be willing to settle at; the timeframes involved in these situations means there is not much time for negotiation.
• Although your solicitors will do a lot of the work for you, if you receive an interim relief application there will still be a lot of work for you as the employer; whether that’s gathering information or giving instructions, be prepared that this can cause significant disruption.
• If you think there is a risk, consider when you might want to carry out the dismissal. If, for instance, no-one will be in school to receive post during the summer holidays and all decision makers go on holiday for the first two weeks of the summer holidays, dismissing someone on the last day of term before the summer holidays might not be sensible.