The rise of interim relief applications: A new risk for employers?

Applications for interim relief used to be very rare but can have huge consequences. They are fast moving, expensive and represent a huge risk to all employers. Due to a significant rise in these types of claims – and the speed at which the process moves – we examine below what interim relief is and what employers need to be aware of.

Interim relief applications used to be made to the Employment Tribunal (ET) around 20 times a year – there are now more than that being made each month to each ET. ETs are sounding alarm bells about this rapid rise, having issued judicial guidance in response in June of this year, and employers need to be ready.

The speed with which these applications move, and the sums at risk, are more akin to High Court injunction applications. The key features are:

• Immediate action is required
• Hearings are held within very short timescales
• Financial exposure can be significant
• Employers have very limited time to prepare their defence

Preparation and awareness are therefore key.

What even is “an application for interim relief”?

 An interim relief application is made by an ex employee at the time they bring their ET claim. It is important to note that it is only available where the claim is about unfair dismissal on the grounds of:

• Whistleblowing
• Health & safety activities
• Trade Union activities
• Some pension scheme activities

Note that there is no need to comply with the ACAS early conciliation process so there will be no “warning” to the employer of a possible claim. The first an employer will know of it is the claim itself.

Even more alarming, there will be a hearing within 14 days to determine the application. For the otherwise sluggish ET this is a shockingly tight timescale – and to put it in perspective this is a hearing being held within half of the period an employer usually has to even respond to the claim (i.e. 28 days). This is where the real jeopardy lies – the employer will only have a matter of days to prepare for the hearing and the outcome of that hearing could be very expensive.

This is because, if successful, the ET can order:

• Immediate reinstatement of the employee (without having heard the case)
• Re-engagement in another role
• Payment of full salary and benefits to the ex-employee until the final hearing

This could amount to several year’s worth of pay whilst they do nothing. Whilst none of these outcomes is ideal, the payment of full pay whilst the ex employee does no work is probably the worst case scenario (at least in financial terms).

The good news is that this type of application is not available for “ordinary” unfair dismissal or discrimination cases. However, due to the huge amount of leverage that it gives the claimant, some pursue this type of claim (particularly whistleblowing) to come within the scope of the opportunity to make the application.

How worried should employers be?

The good news is that not many claimants are successful in obtaining the relief sought – because the threshold for succeeding is very high. Bear in mind that this is not a hearing of the merits (i.e. the whole case) – but a kind of a “snapshot” asking the Judge to determine whether the claimant is likely to succeed at the final hearing.

The courts have interpreted this as meaning it is not enough to show:

• The case is arguable
• The claim is more likely to succeed than not

Instead, the claimant has to establish a really good chance of winning. In most cases, it will be hard to determine this and the relief will not be granted.

A recent case that was appealed to the EAT tells us a bit more. In this case (Duffy v BXTR Ltd), the EAT confirmed that an employment tribunal considering whether a whistleblowing claimant has a “pretty good chance” of success at final hearing, such that interim relief should be granted, must make a summary assessment of the evidence before it. The existence of a factual dispute is not of itself determinative of this issue.

This was essentially a dispute about whether a dismissal had taken place due to poor performance within probationary period – or whether the dismissal was retaliation for raising fire safety concerns. At appeal level, the EAT referred to the new guidance mentioned above, and stated that if an employer identifies an apparently good reason for dismissal unrelated to the alleged protected disclosure, it will be difficult for a claimant to satisfy the “pretty good chance of success” test for interim relief unless they have clear evidence that the employer’s stated reason was not the real reason for dismissal.

It is important for employers to recognise that, just because most claimants don’t succeed, this does not mean that there is no risk. The immediacy of the action and the race to defend will be significant enough to most employers, irrespective of the outcome. Claimants will know this and may be tempted to use it as a tactic – to create pressure and leverage on the employer to settle.

Why is this happening?

Aside from the obvious leverage it gives an applicant, there might be several reasons for the recent and significant rise in applications.

The ET system is at an all time high with backlogs and delays. The impending changes to extend time limits and to lower thresholds for claims will only add to this. Most employees who believe that they have been unfairly dismissed could wait for 3 years to have their case heard. This means delayed access to justice – but also to compensation. Making an application for interim relief means either getting their job back or getting salary for that time without having to work. This would be quite the outcome for the ex employee.

Further, the option to claim interim relief is now available as a tick box on the ET1 form and it might be that some claimants tick it without really knowing what it means. If so, some form of further explanation or even claim sifting would be beneficial as and when the ET receives these claims. Regrettably, that does not appear to be on the horizon.

Finally, the use of AI assistance in drafting claims may mean that interim relief is being suggested to the ex-employee as the term has been fed into the software. This is one of many dangers posed by the use of AI rather than real world legal advice and will often not be appropriate in the circumstances.

So what should employers do?

 Whilst the rise in this type of application is real, employers should not be too alarmed. As a firm, we have seen one of these cases in the last three months. Remember that they only apply to certain types of claims, they won’t happen in every case and they are usually defended successfully.

However, preparation is key. Where an employee who has been – or is at risk of being – dismissed raises concerns over whistleblowing, health & safety, pension scheme activities or TU links, employers must be aware of the possibility of the application. The risk assessment of this type of termination should be evaluated accordingly.

Employers should:

1. Ensure clear records are maintained.
2. Make sure all relevant information is readily available.
3. Ensure key decision makers can be contacted at short notice.
4. Be prepared to instruct legal representatives quickly if an application is received.

Keeping clear records is always key – but remember here that you may need to explain the situation to your legal representatives and indeed to a Judge within a matter of days. These are exceptionally tight timescales for anyone, but perhaps especially for those who have become used to lengthy ET delays. Interim relief hearings are usually around three hours in length, so having the right information available – and at very short notice – is crucial to success.