A growing trend in interim relief applications

What is interim relief

In certain types of automatically unfair dismissal cases, a tribunal can grant an employee interim relief by ordering the employer to continue employing the employee or continue paying their salary until the case is determined.

When is interim relief available?

Interim relief is only available in very limited cases. An employee may only seek interim relief if the alleged reason for the dismissal is for an automatically unfair reasons such as union membership or activity, making a protected disclosure ("whistleblowing") or activities as a health and safety representative, a working time representative, a pension scheme trustee, or an employee representative for the purposes of collective redundancy or TUPE.

Historically interim applications were used in trade union cases, however, there has been a growing trend towards using them in whistleblowing claims especially in the backdrop of the covid-19 pandemic. This is because whistleblowing cases have become prevalent as a result of allegations of fraudulent claims under the Coronavirus Job Retention Scheme, health and safety concerns including the provision of PPE in the workplace and union activities in respect of negotiating contractual changes and redundancy.

Recently, in the case of Morales v Premier Fruits (Covent Garden) Ltd ET/230294520, an employment tribunal granted interim relief to an employee claiming unfair dismissal on grounds that he used a trade union to lodge a grievance about a reduction in wages and an alleged lack of personal protective equipment (PPE) during the COVID-19 pandemic.

What is the procedure

An employee must present their ET1 for unfair dismissal before or at the same time as the interim relief application. As an application for interim relief must be made to the tribunal within seven days of termination of employment, employees must act quickly as no extension of time will be allowed unless the employee can establish that the employer has acted fraudulently causing real injustice to employee.

The tribunal would need to determine the application "as soon as practicable" and must give the employer at least seven days' notice of the date, time and place of the hearing, and a copy of the application. The application will be considered at a preliminary hearing together with the ET1, written submissions, documents and witness statements.

When will Interim Relief be granted?

A tribunal can only grant interim relief if the employee is likely to establish, at the full hearing, that the prohibited reason was the reason for their dismissal. The burden of proof is on the employee at this stage.

What Order can be made?

If the employee is successful, then the Judge must ask the employer whether it is willing to reinstate or re-engage the employee on terms no less favourable than those on which the employee was employed prior to the dismissal.

If the employer refuses, then the tribunal must make an order for the continuation of the contract of employment. This means that the employee will effectively be suspended on full pay until the claim settles or the final hearing. Importantly, the employee is not under any obligation to mitigate their loss or attend work so this can be very costly for employers. Furthermore, any payments made under this Order are not recoverable if the employee is unsuccessful at the final hearing.

An application for interim relief can therefore be an effective weapon in litigation and encourage an employer to engage in settlement discussions.

Advice

If you need assistance or advice on the contents of this article, please contact Thackray Williams LLP who have set up a FREE Legal Advice Line to businesses and employees in the wake of COVID-19. Do get in touch on 020 8663 4127 if you wish to discuss this matter in more detail or require any advice.