The law recognises that some claims to an employment tribunal must be dealt with quickly if there is to be an effective remedy for the claimant. This is called an “interim relief” application.
Interim relief can be used by employees who have been dismissed for one of eight automatically unfair reasons.
- Carrying out of activities as a designated health and safety employee or performance of any functions as a health and safety representative
- Performance of any functions or activities as a working time workforce representative or candidate
- Performing the functions as the trustee of an occupational pension scheme
- Performing any the of any functions or activities as a collective redundancy or TUPE representative or candidate
- Interference with trade union recognition or collective bargaining or balloting
- Blacklisting, or
- on grounds relating to trade union activities
Interim relief is not available in cases of selection for redundancy.
The non-availability of interim relief for discrimination claims has been challenged in Steer v Stormsure Ltd where the Employment Appeal Tribunal held that the exclusion of discrimination claims from the interim relief remedy breaches the European Convention on Human Rights. The case is headed for the Court of Appeal which could grant a declaration of incompatibility which would place pressure on the government to amend the Equality Act 2010.
Unsurprisingly, applications for interim relief are very rare.
The effect of a successful application is that an employee will be put back on the payroll, reinstated or re-engaged, until the claim has been heard in full at the Employment Tribunal. As Tribunal claims are currently taking 12-18 months to reach a final hearing, they can be an incredibly useful weapon for an employee who has a very strong case.
Applying for interim relief
The range of claims under which a Claimant can bring an interim relief application is narrow.
The time limits for applying for interim relief is strict, the employee must present their application within 7 days of their employment ending – usually at the same time as they make a claim for unfair dismissal.
The Tribunal stage
Once the application for interim relief is made, the tribunal is required to consider it as soon as practicable.
The burden is on the Claimant to show that it is ‘likely’ that they will succeed in every element of their claim at the final hearing and be successful in showing that the reason for their dismissal was the reason they relied upon (for example whistleblowing or health and safety).
The Tribunals have clarified that ‘likely’ means more than a reasonable prospect of success, it constitutes a high degree of likelihood.
Result of a successful application
If the Claimant is successful in their application, the Tribunal will invite the employer to reinstate or re-engage them. This must be on terms which are not less favourable than before the dismissal.
The employer is under no obligation to offer to reinstate, and the employee is under no obligation to accept the offer. However, unless the tribunal finds that the employee has unreasonably refused the offer from the employer, they will order the continuation of employment in the interests of preserving the employees pay, benefits and continuity of employment until the final hearing.
What if the employee is successful in obtaining interim relief but is not successful at the final hearing?
If this situation occurs, the employee does not have to repay their salary that they received during the interim relief period, even if no work was carried out for the employer.
The Impact of Covid-19
Covid – 19 has had a significant impact on all aspects of employment law and interim relief is no exception. Applications are becoming more frequent particularly where employees are raising health and safety issues relating to Covid and are dismissed for whistleblowing, or where there has been an increase in union activities at employers’ failures to take effective Covid measures.
The Employment Tribunals are also suffering significant delays due to the Impact of Covid-19. Interim relief gives employees temporary financial assurance whilst they await their final hearing.
Molly Dilling, Trainee Solicitor
29th March 2021