What is interim relief?
Interim relief is a temporary remedy available to employees who claim that the reason, or principal reason, for their dismissal is one of a limited number of ‘prescribed reasons’ set out in s128 to s132 of the Employment Rights Act 1996, and s161 to s166 of the Trade Union and Labour Relations (Consolidation) Act 1992. These prescribed reasons include:
- the 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 collective redundancy or the Transfer of Undertakings (Protection of Employment) (‘TUPE’) representative or candidate
- grounds relating to trade union activities
Interim relief is not available in discrimination cases.
What are the consequences of a successful interim relief application?
The tribunal can make an order that the employer must either continue to employ the employee until the date that their full employment claim is determined or, more commonly, pay them their salary and provide all benefits until that date (even if they are not carrying out any work for their employer). They will also accrue continuity of service.
As there is currently a considerable backlog of cases in the employment tribunals, employers could potentially be paying a former employee their salary for up to two years until a full hearing. This means that successful interim relief applications are usually very costly for employers, especially if the former employee was highly paid.
What are the requirements for bringing an interim relief application?
In terms of employment status, the individual needs to be an ‘employee’ and not a ‘worker’. Unlike ordinary unfair dismissal claims, the employee does not need to have two years of continuous service before an interim relief application can be made. Applications for interim relief must be made within seven days of the date on which employment ends, but can also be made earlier, for instance within the notice period. This timeframe is strict and cannot be extended. Also, the ACAS early conciliation procedure which must normally be completed before an employment claim can be issued, does not apply to applications for interim relief.
When will interim relief be granted?
Applications for interim relief are rare and interim relief orders even rarer. An order for interim relief will only be granted if the tribunal is satisfied that the claimant is “likely” to be successful in all of the elements of their unfair dismissal claim and that the reason/principal reason for their dismissal was one of the prohibited reasons set out in law; in other words, they need to have a “pretty good chance” of winning at the full hearing. This is a high hurdle to meet and the burden of proof is on the employee.
Does a claimant have to repay their salary if they lose at the final hearing?
No, the claimant does not have to repay the salary they received as a result of the interim relief order. Therefore, successfully defending an interim relief application is critical.
Are the hearings public?
Yes, hearings must be held in public unless an order restricting publicity is made. These orders are very difficult to obtain because the risk of reputational damage or embarrassment is not sufficient to override the principle of open justice. Interim relief applications can therefore present huge challenges for employers who are looking to minimise the reputational and commercial damage that can arise, particularly in sensitive whistleblowing claims.
How should employers respond to interim relief applications?
Although interim relief is rarely sought and granted, where an application is successful it is a very powerful tool for a dismissed employee. This is because they will have already satisfied the tribunal that their unfair dismissal claim is “likely” to succeed, and they will also be receiving their full salary; this will then put a great deal of pressure on an employer to settle the claim as early as possible.
Therefore, any employer faced with an interim relief application needs to vigorously defend it from the very outset. Given the strict time limits for responding, action must be taken swiftly to prepare for the interim relief hearing, which is often listed with less than two weeks’ notice to the employer. You must urgently prepare the necessary court documentation setting out why the employee was fairly dismissed, together with a supporting witness statement (usually from the person who made the decision to dismiss). You should also check whether the application itself was submitted in time, and look at the merits of all elements of the claim: are there any potential jurisdictional hurdles, or a fundamental dispute of fact, that you could challenge?
An interim relief hearing will be listed by the tribunal as soon as possible and even though the employer must be given at least seven days’ notice of the hearing, the reality is that the urgent nature of the process puts a great deal of pressure on both the claimant and their former employer.
How best to avoid interim relief proceedings?
The vast majority of interim relief applications are made in whistleblowing cases. Whistleblowing disclosures usually emerge as part of a grievance process, and it is critical that employers take advice on any concerns being raised by employees at an early stage so as to respond sensibly and lawfully to the issues being raised.
How 3CS can help
Interim relief applications are highly complex and time-consuming, and can be extremely costly if not expertly defended. The highly experienced employment team at 3CS has dealt with numerous interim relief cases. We are ready to support and assist your business with this, and all other aspects of employment law. Please get in touch with your usual 3CS contact for more information.