Dismissed employees bringing certain claims in the Employment Tribunal have the right to apply for “interim relief.” If their application is successful, a Tribunal can order their employer to continue to employ them (or pay their salary) until their claim is decided at a final hearing.
It is a draconian remedy that could potentially be expensive. The backlog of Tribunal cases in some regions means that an employer could be paying a dismissed employee their salary for between one and two years before their case gets to final hearing.
Our team successfully defended an application for interim relief on behalf of an employer last year. But such applications are rare. They are also difficult for employees to win. So, whilst employers need not panic, they should be prepared and know the key facts.
Who can apply for interim relief?
Interim relief is only available in certain types of automatic unfair dismissal claims, including whistleblowing claims and trade union membership claims.
The employee must apply within 7 days of their employment ending. The Tribunal is likely to list a preliminary hearing to decide the application. The employer will be given at least 7 days’ notice of the hearing, but preparation time is usually limited.
When will the Tribunal order interim relief?
An application will only succeed if the Tribunal decides that it is “likely” that at the final hearing the Tribunal will decide that the dismissal was for the reason the employee is claiming. The cases tell us that “likely” means “a pretty good chance” of success. The Tribunal must make this assessment based on a brief look at the initial documents, what lawyers call a “summary assessment.”
If the employee succeeds, and the employer is willing to reinstate or reengage the employee, the Tribunal will make an order in those terms. If the employer refuses, or does not attend the hearing, an order will be made for continuation of the employment contract. In that situation, the employee has the right to their salary, but does not have to work.
Even if the employee goes on to lose at final hearing, they do not have to pay their employer back.
What should an employer facing an interim relief application do?
The employer must act very quickly and get urgent legal advice, to make sure they are able to comply with the strict, short timescales involved.
With the help of legal advisers, the employer will need to focus on setting out a compelling case in writing (ideally referring to key documentary evidence), focusing on the reason for dismissal and, if possible, why it was fair.
This should stand the employer in good stead to defend the application robustly.
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