Dealing with interim relief applications: An employer's guide

April 3, 2014

Interim relief applications.  Never heard of them?  You’re not alone.  The vast majority of HR professionals rarely receive one – but if you do, you need to act fast.  They can be costly.  This employer’s guide to dealing with interim relief applications gives you the basics of what you need to know.

1.  What is an interim relief application?

  • A request by a dismissed employee to an Employment Tribunal for it to make an Order for the continuation of their employment pending a full hearing.
  • Interim relief is only available in certain types of unfair dismissal case – where the dismissal is claimed to be automatically unfair because the reason was:
    • Union membership / activity
    • Whistleblowing
    • Activities as a representative (for example a health & safety representative)
  • Most interim relief applications relate to union membership or activity but the number relating to whistleblowing is increasing.
  • Interim relief is not possible if the reason for the employee’s dismissal was redundancy, even if the employee is claiming that he was selected for redundancy because of his union membership / activity, whistleblowing or activities as a representative.

2.  Timing 

  • Employees have just 7 days from their dismissal to submit an interim relief application to the Employment Tribunal.  The clock starts to run the day after they are dismissed.  
  • Tribunals are then required to list an interim relief hearing “as soon as practicable” giving a minimum 7 days’ notice.  In practice, by the time you receive it in the post you may have less than 7 days to prepare for the hearing.

3.  Preparing for the interim relief hearing – what should you do?

  • Clear your diary and that of key witnesses – not just for the day of the hearing but for the next few days.  Preparing for the hearing is like preparing for a smaller version of a full Tribunal hearing but in a tiny a fraction of the time.
  • Book counsel – your lawyers will be able to recommend good counsel to represent you at the hearing.
  • Collate all documents relevant to the dismissal and give these to your lawyers as quickly as possible.
  • Prepare witness statements.  This can be time-consuming but the time is usually well spent as witness statements play a big part in a Judge’s assessment of the case.  It is rare for witnesses to be cross-examined at interim relief hearings or to be asked questions by the Judge but witnesses should be prepared for this.

4.  Will interim relief be granted?

  • Only if the Tribunal decides that the employee is likely to establish at a full hearing that the prohibited reason (union membership/activity, whistleblowing or activities as a representative) was the reason for his dismissal.
  • The burden is on the employee to persuade the Tribunal and “likely” represents a high hurdle.  Case law has found this to mean that the employee must have a “pretty good chance” or that his case “looks like a winner”.

5.  If the Tribunal grants interim relief, what can it order?

  • If the Tribunal decides to grant interim relief, it can order that the employee is:
    • reinstated to his former job; or 
    • re-engaged in a new job – on terms no less favourable and acceptable to employee.
  • If you as the employer refuse to reinstate or re-engage the employee then the Tribunal will make an “order for the continuation of the contract of employment”, meaning that the employee will continue to receive his salary and benefits and his continuity of service will continue to accrue but he will not be required to do any work. 
  • All interim relief orders last until full hearing.  Orders for reinstatement and re-engagement mean that the employee continues to attend the workplace whilst in litigation with you.  An order for the continuation of the employment avoids this but means that you have to pay the individual and get nothing in return - and it serves as an incentive for the employee to try to delay the date of the hearing as much as possible.  

For further information please contact a member of the hrlaw@foxwilliams team.


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David Murphy
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dmurphy@foxwilliams.com

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