The Presidents of the England and Wales and Scottish ET (Judge Barry Clarke and Judge Susan Walker) have today issued new Presidential Guidance on applications for Interim Relief which can be sought in some unfair (automatic) dismissal complaints.
As para 3 of the Guidance explains:
Interim relief is an emergency measure. It is not an injunction/interdict, although it operates in a similar way, in that it prevents a dismissal from taking effect until the tribunal has heard the complaint of unfair dismissal. If interim relief is granted, the tribunal may order the employer to reinstate the claimant or to re-engage them in an equivalent role, or the tribunal may make a “continuation of contract order” (which has the effect of keeping the employee suspended on full pay until the full hearing). Because of the effect of those orders, there is a high threshold for claimants to satisfy the tribunal that interim relief should be ordered. Most applications therefore do not succeed.
The Presidential Guidance, which can be read here, has been issued in response to an increase in the number of applications received and the complexity of the evidence. There used to be, it states, perhaps 20 interim relief applications a year and now each separate tribunal receives as many a month (para 4).
The guidance summarises:
- the legal claims in which an interim relief application can be made (para 7 and 8)
- that an application must be made within seven days of the effective date of termination without exception (para 11)
- That if the claim is of trade union dismissal the claim must be accompanied by a certificate from an authorised union official (para 12)
- ACAS Early Conciliation is not required for a claim but the exemption does not apply to any other claim made on the same form (para 14 and 16).
- That an interim relief judgement is not an easy one to get and that the legal threshold is a difficult one to meet (para 19-20).
- That the tribunal will expect only key evidence to be deployed and hearings will be short (para 27-28).
There has been some discussion for a while there has been an uptick in interim relief applications. I do not necessarily see that as a bad thing in itself. That there were only 20 such application a year surprises me and does feel on the low side to me – I would expect more to have been made and in the right case (and I think certainly more than 20 a year) an interim relief application is a powerful tool for members (I have written about one such case before brought by the UVW union). So the increase is not a bad thing, it means more claimants who do actually have a good case that they meet the high threshold have a chance of obtaining this important remedy.
The problem historically was even if a claimant had access to legal advice by the time that advice was received the seven day window for an interim relief application had passed. It was ignorance of rights that caused the historically low number of applications. So, if AI has increased awareness of the right then I think that is a good thing.
Still, it serves no-one for cases that do not have a reasonable case of meeting the high threshold (Taplin) of using up tribunal time that will produce no result except delaying the case and other cases. The new presidential guidance should be essential reading for any employee representative who may be asked about interim relief. And, if you are a claimant contemplating you must not delay an application but, if you can, please read the guidance carefully before doing so – the guidance accurately reflects the law.
Most interim relief applications fail because it is not very likely that the tribunal will find the dismissal was automatically unfair without hearing all the evidence. In the case I referred to the there was damning primary evidence (an audio recording) that the reason was union activity. That is the type of evidence often required to allow a tribunal to find interim relief should be granted.
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