Interim relief applications in the employment tribunal
Even before 2020, employment tribunal (ET) proceedings were beset with delay as a consequence of years of under-resourcing, and it was often the case that a claim would not reach a final hearing for as much as a year from the date of issue.
Unsurprisingly, this state of affairs has been significantly exacerbated by the COVID-19 pandemic and, irrespective of the strength of their claims, claimants can often face a very long wait for the hope of an award of compensation.
In that context, the option of seeking what is known as “interim relief” looks ever more attractive to employees considering bringing a claim in relation to termination of their employment.
This is because the effect of a successful interim relief application is that an ET makes an order for the continuation of the claimant’s employment until their claim is determined. This, in turn, means that the claimant is paid by the respondent in full up until the final hearing.
An employee seeking to apply for interim relief must do so within seven days of the termination of their employment. The application triggers an emergency procedure and the ET will list an urgent hearing in order to determine whether the employee is “likely” to succeed in their claim before a final hearing.
It is worth noting that, unusually, the requirement to undertake ACAS early conciliation prior to issuing a claim does not apply to unfair dismissal claims which contain applications for interim relief.
If the employee is successful in their application (which, in the interests of expediency, is decided by the employment judge without reference to any witness evidence), the judge must ask the employer whether it is willing to reinstate or re-engage the employee on the same terms as they enjoyed prior to their dismissal.
If the employer refuses to do either, then the ET must make an order for the continuation of the contract of employment, which is, in effect, an order for the employee to be suspended on full pay and benefits until either the claim settles or the final hearing takes place.
Applications for interim relief are rare and (currently) only apply to limited types of cases where the dismissal is asserted to be automatically unfair because it either relates to the claimant’s right to be accompanied to certain hearings or is because of the claimant’s:
- Trade union membership or activity;
- Whistleblowing; or
- Activities as an employee representative (for example a health & safety representative) or as a trustee of an occupational pension scheme.
In practice, an employer who has had a successful claim for interim relief made against them will be more incentivised to reach a financial settlement with the claimant early on in proceedings in light of the ET’s initial assessment of the merits of the claim and the associated costs of defending it.
Given that long delays within the ETs appear likely to remain a feature for the foreseeable future, applications for interim relief may become much more common as a means of supporting claimants whilst they are waiting for their claims to be heard.