Before 2019, an application for ‘interim relief’ was a fairly rare occurrence, but the number is rising year-on-year. Data suggests that the number of employment tribunal decisions published in 2019 that mention interim relief is 41 per cent higher than in the previous year, and an increase of a staggering 63 per cent on the number published in 2017.
Interim relief is a form of remedy, ordering an employer to re-engage or reinstate a dismissed employee, or to reinstate their salary and benefits even if they don’t return to work, pending a full tribunal hearing.
Given the current delay in getting full hearings listed and conducted in the tribunal, the financial implications for an employer of interim relief being granted can be very high. If the relief is granted, and the claimant then loses at full hearing, the employer has no recourse to recover the further salary and benefits paid to the employee in the period between dismissal and the hearing.
While difficult to determine the precise reasons behind this increase without analysing the individual claims, there are a number of factors that could be contributing to this picture.
Interim relief is currently only available in a limited number of unfair dismissal circumstances. The most common ones cited in interim relief applications are automatically unfair dismissal for trade union membership or activities, or for having made whistleblowing complaints. However, the ability to apply for interim relief also extends to individuals who have been dismissed for their activities as an employee representative in collective redundancy consultation situations. Given the increase in such collective processes taking place across all sectors over recent times, this could explain why there are more claimants considering interim relief applications.
What is also likely to be playing an even more significant role in the rising number of applications is the notable delay in claims reaching resolution at full hearing. This is down to the sheer volume of cases as well as the lack of resources in the tribunal system. With cases taking up to two years to be fully resolved, and any resulting remedy being awarded to and received by a claimant, you can understand why they may be more inclined to chance an interim relief application. The burden of proof in interim relief application is high and sits with the claimant, and they need to persuade the tribunal that they are likely to win at full hearing – this is a high burden, which explains why interim relief awards are few and far between.
Because of its limited use, most businesses are unlikely to have had to respond to such an application, However, if one is submitted, an employer will have very little notice and equally little time to prepare. There is no obligation on the claimant to use the Acas early conciliation process and, once lodged with the tribunal, a hearing will be convened with a minimum of just seven days’ notice.
If you’re notified of an application you need to act fast as you will be dealing with disclosure and drafting as well as exchange of witness statements, which would usually be spread over several months, being dealt with in a week. Given the draconian nature of the interim relief that may be granted, it is obviously vital that the employer puts itself in the very best position to defend the application being made.
This will come at a cost, as the work that would be required to defend the tribunal claim will be front-loaded. Applications will also require financial commitment from the employee, which means that the cases that are brought are often union backed, or supported by a whistleblowing lobby group, for example.
There is also the potential for the application of interim relief to be widened to apply in discrimination cases as a result of a recent legal challenge, which would undoubtedly significantly increase the number of applications being made.
A recent case was heard by the Employment Appeal Tribunal (EAT) where a claimant was arguing that the lack of availability of interim relief in discrimination was unlawful. The EAT agreed, but does not have the power to interpret the Equality Act 2010 to include interim relief so has given the claimant permission to appeal to the Court of Appeal, which does. So it seems likely that the opportunity of interim relief will be significantly expanded if this appeal is brought and successful – something to keep a watch on in 2021.
While the total number of interim relief applications in 2020 currently sits just below the number for 2019, trends suggest that we will see a marked increase once the data becomes available. Despite the overall risk of receiving such a claim still being relatively low, the steady increase in applications along with the potential financial impact makes this a trend employers really need to be aware of.
Esther Smith is an employment partner at TLT