Interim relief: what it is and what types of dismissal can trigger an application
At the end of last year, the Employment Appeal Tribunal (EAT) delivered a judgment that has the potential to significantly change discrimination claims in the future.
The case was that of Steer v Stormsure Limited https://www.gov.uk/employment-appeal-tribunal-decisions/mrs-s-steer-v-stormsure-ltd-ukeat-slash-0216-slash-20-slash-at-v.
Ms Steer made several complaints against her employer and claimed that she had been discriminated against, including of sexual harassment. Ms Steer asked to work from home to avoid any further occurrences. After making the request, her hours of work were reduced so much that Ms Steer claimed that she had been dismissed and/or constructively dismissed.
When the matter reached the Employment Tribunal, Ms Steer said that her dismissal was discriminatory (direct sex discrimination and/or victimisation) and due to her raising a grievance about the sexual harassment she had suffered. She made an application to the Tribunal for interim relief, asking to be returned to her job pending the final decision of her Tribunal claim. The Tribunal said that it did not have jurisdiction to hear the interim relief claim because of the narrow circumstances where an interim relief application can be made (see below).
Ms Steer appealed the decision and argued that the restrictions on claiming interim relief breached EU law and Articles 6 and 14 of the European Convention on Human Rights (ECHR).
The EAT rejected Ms Steers arguments on EU law but said that the narrow restrictions on interim relief did breach Article 14 of the ECHR.
The EAT decided that it did not have the power to interpret the Equality Act 2010 to include interim relief, or to use the Human Rights Act 1998 to grant a declaration of incompatibility, which would force the Government to consider changing the law to eliminate the incompatibility. Ms Steer was however given leave to take her case to the Court of Appeal to seek such a declaration.
What is interim relief?
Where an employee claims to have been unfairly dismissed by their employer for one of several specified reasons, they can apply to the Employment Tribunal for a remedy known as interim relief. If their application is successful, the Tribunal will make an interim relief order.
This order can take a number of different forms – it can call for the employer to reinstate or re-engage the employee pending the determination of the unfair dismissal claim. Alternatively, where the employer is unwilling to agree to either, the Tribunal may make an order continuing the employee’s contract of employment until such final determination.
An application for interim relief will only succeed if the Tribunal are satisfied that it is “likely”, at the final hearing of the claim, that the Tribunal will find in favour of the claimant on the unfair dismissal claim. “Likely” in this context connotes a significant degree of likelihood (higher than 51%).
In circumstances where an employee applies for interim relief and is successful, but loses their case at the final hearing, they will not have to repay the salary they received as a result of the interim relief order.
What types of dismissal can trigger an interim relief application?
Under Section 128 of the Employment Relations Act 1999, an application for interim relief can only be made where the alleged reason for dismissal is for one of the following:
(1) The carrying out of specified health and safety activities;
(2) Acting as a representative of members of the workforce for the purposes of Schedule 1 to the Working Time Regulations 1998
(3) Acting as a trustee of an occupational pension scheme
(4) Acting as an employee representative for collective redundancy or TUPE purposes
(5) Making a protected disclosure, also known as whistleblowing
(6) The interference with trade union recognition, collective bargaining or balloting
Under the Trade Union and Labour Relations (Consolidation) Act 1992, section 161, interim relief is available if the claimant was dismissed on grounds relating to union membership or activities.
The Employment Relations Act 1999 extends the right to claim interim relief to those who claim that they have been dismissed because they sought to be accompanied to a disciplinary or grievance hearing, or because they tried to accompany a worker to such a hearing.
The Employee Study and Training (Procedural Requirements) Regulations 2010 also extends the right to claim interim relief to those who claim to have been dismissed because they attended a meeting to discuss a request for time off for education or training, or because they accompanied a colleague to such a meeting.
Interim relief is not available in cases of selection for redundancy for any of the reasons listed above. Relief is also not available where an employee refuses to return to the workplace, or takes action relating to dangerous circumstances. However, if the employee has made a protected disclosure to their employer that relates to the dangerous circumstances, this may enable the employee to claim for interim relief due to whistleblowing.
What is required to bring an interim relief application?
To apply for interim relief, the applicant must be an employee (not a worker), and unlike a normal unfair dismissal claim, the two years’ qualifying service is not required.
The employee must bring their claim within seven days of the effective date of termination. If the employee has been dismissed but are working their notice, they can make the application during that period of notice. The seven-day time limit is strict.
Unlike other Employment Tribunal claims, the early conciliation requirement (ACAS) does not apply.
What should employers do if an interim relief application is made?
The most important thing to remember is that speed is of the essence. A detailed ET3 response should be prepared with as much detail as it is possible. This should include (where possible) a statement from the person who presided over the dismissal (the dismissing officer), showing why the employee was dismissed and any relevant evidence to that affect. The Tribunal will need to understand whether the claimant is likely to succeed in their claim.
Interim relief and COVID-19
Just as in many other areas of society, COVID-19 has significantly shaped employment law. Interim relief has traditionally only rarely been sought but since the pandemic, there has been a considerable increase in applications. Such applications are mainly flowing from the reasons set out below.
Firstly, as employees return to the workplace, they may find that their employers are less than assiduous when it comes to taking measures to make the workplace “COVID secure”. There is therefore the potential for claims relating to breaches of health and safety. In circumstances where an employee raises health and safety concerns, and they are dismissed because of raising that complaint, they would be entitled to seek interim relief as such dismissal would have been on grounds of whistleblowing.
Additionally, the activities of trade unions in response to perceived lack of employer safety measures will increase the number of employees involved in union activity which as set out above is a circumstance where interim relief may be granted (should they be dismissed).
Further, there are a lot of cases of alleged “furlough fraud” where an employee has asserted that their employer has made false claims under the Coronavirus Job Retention Scheme.
Employees might “blow the whistle” because they are aware of such claims and if they dismissed for this reason, they would be entitled to apply for interim relief.
It cannot have escaped the notice of employers that the Employment Tribunal system has been subject to lengthy delays, since the abolition of Tribunal fees and exacerbated by the ongoing pandemic. An employee who has been dismissed and is waiting for their claim to be heard by the Tribunal may well consider seeking an interim relief order, since this may put them back on their employer’s payroll until the claim is finally determined. The fact that an application for interim relief must be heard within seven days of the effective date of termination, makes this option even more attractive to claimants.
A recent case of an Employment Tribunal ordering the reinstatement of an employee highlights the impact that COVID-19 has had and will continue to have on interim relief applications. Due to the pandemic the Claimant was asked to accept a 25% pay cut and take one week’s unpaid leave a month. The Claimant contacted his trade union who lodged a grievance on his behalf, the grievance detailing that the wage reductions had caused him detriment and further raising health and safety concerns in respect of a lack of PPE. The claimant was later dismissed, and the claimant brought proceedings against his employer for unfair dismissal. He applied for interim relief and the application was granted.
Lucy Stephenson, Solicitor at rradar