Interim Relief: A short circuit to success in the Employment Tribunal?

Interim relief is a remedy that is available only in specific categories of unfair dismissal complaints mainly relating to specified trade union membership or activity or to making a protected disclosure but also to certain other, more niche, statutory claims. Tribunals and practitioners have seen the greatest increase in cases which rely on alleged protected disclosures - i.e. whistleblowing cases. 

Interim relief is intended to be an emergency measure. The claimant must bring the application within seven days of their effective termination date (but can do so before their employment terminates) and the usual ACAS early conciliation rules do not apply. 

The tribunal is then required to determine the application as soon as practicable. A hearing will be listed where parties will present relevant evidence. Respondents must be given at least seven days’ notice of a hearing, but effectively any evidence – both documents and witness statements – will need to be submitted to the tribunal a few days before that hearing. Therefore, in the worst-case scenario, respondents can essentially have three or four days to prepare a “mini-merits-hearing”. 

At first glance, there are strong incentives for a claimant to make an application for interim relief. If an application is successful, there are three possible outcomes: (1) reinstatement to the role the ex-employee previously held, (2) re-engagement to an equivalent role and failing that, (3) a continuation of contract order. Given the ongoing delays with the tribunal process, it is seen as a short-circuit to success as a tribunal must deal with these applications much more quickly – and the claimant potentially gets a remedy far earlier than they otherwise would.

Re-instatement and/or re-engagement are the primary remedies the tribunal must consider. However, if an employer refuses to reinstate or re-engage the claimant, a continuation of contract order means that their employment contract continues and they continue to receive full pay and benefits and to accrue service, until the final merits hearing without the claimant being required to work. Even if the employer ultimately successfully defends the claim, those sums cannot be recovered. The tribunal is now listing final merits hearings into 2028 and beyond, so that could be significant expenditure for nothing in return. 

However, the “circuit breaker” is the high threshold for a successful application. A claimant must be able to show that they have a “pretty good chance of success”. In whistleblowing cases, a claimant must show that they made a protected disclosure (which has a legal test in itself) and that they have a pretty good chance of evidencing, at a final merits hearing, that this was the reason, or principal reason, for their dismissal. The presidential guidance is clear that the test, developed through the case law, requires “something nearer to certainty than mere probability”. A more complex case does not mean a higher likelihood of success. If a claimant is alleging multiple protected disclosures, they have more hurdles to surmount. The more alleged disclosures there are, the harder it may be to prove that the dismissal is clearly linked to any specific disclosure.

Interim relief was once a little-known remedy that, given the high bar to success, was rarely applied for. A key driver of the rise in applications is the proliferation of artificial intelligence. Claimants can more readily access knowledge about the tribunal process and the available remedies, but with a more limited understanding of the legal tests behind those remedies and therefore the likelihood of success.  

AI can also produce lengthy documentation in support of such an application. The guidance is clear that unnecessarily lengthy documentation is not welcome. Documentation and any witness evidence should be targeted and concise. 

While interim relief applications are, by their nature, always intense there are things you can do to prepare: 

• Identify whistleblowing cases as early as possible. If an employee is raising protected disclosures in a dismissal context, even tangentially, this warrants close attention. 
• Consider documenting the rationale for the dismissal. In interim relief proceedings, a clear and contemporaneous record to support the decision-maker’s evidence can be particularly important. 
• Consider the timing of dismissals. To defend an application, written witness evidence from key decision-makers will likely be required. If a key decision-maker will be out of the business following such a dismissal, this could make things more difficult. 
• Take preliminary steps to prepare your key evidence. Have key documents somewhere easy to find and engage with key witnesses so they aware of the possibility that they may be needed at short notice.
• Ensure the postal address which a claimant is most likely to use, or is most visible online, can actually receive claims sent by post. Claimants often issue against addresses found on the internet, which may not be where claims are processed, and the tribunal will direct the claim papers to whichever address is stated by the claimant. 
• Act quickly. There is limited time to prepare a defence to an interim relief application, so ensure those who are likely to handle claims, once received, know to take action as soon as they can.