What Does a Claimant Have to Prove to Obtain an Order for Interim Relief from the Tribunal?
The Employment Appeal Tribunal (EAT) has provided helpful guidance on what threshold a claimant must meet to be awarded an Order for Interim Relief by the tribunal.
What Is Interim Relief?
In certain types of automatically unfair dismissal cases (for example whistleblowing claims), a claimant can seek an Interim Relief Order, requiring the employer to continue employing the employee (or if it is unwilling to employ them, to continue paying their salary) until the case is finally determined.
A claimant must make an application for Interim Relief before the end of the seventh day following the effective date of termination (ie the date on which notice expires or termination takes effect is dismissal is without notice). If the employee was dismissed with notice, they can also make their application during the notice period.
A tribunal can only grant Interim Relief if it decides that the claimant is 'likely' to establish at the full hearing that the prohibited reason was the reason (or principal reason) for dismissal (s129(1) Employment Rights Act 1996 (ERA)).
In a recent case, the EAT considered this test in more detail.
Wollenberg v Global Gaming Ventures
Mr Wollenberg was summarily dismissed for gross misconduct after making what he alleged were a series of protected disclosures. He brought a claim for automatic unfair dismissal for whistleblowing. He also made an application for Interim Relief, on the basis that it was 'likely' that a tribunal would find that the reason or principal reason for his dismissal was his protected disclosures. When his application for Interim Relief was not granted at first instance, Mr Wollenberg appealed.
In reaching its decision on Mr Wollenberg's application, the EAT noted that an application for Interim Relief is a brief urgent hearing at which the Employment Judge must make a broad assessment. The EAT confirmed that "the question is whether the claim under s103A [Whistleblowing] is likely to succeed. This does not mean more likely than not. It connotes a significantly higher degree of likelihood. The Tribunal should ask itself whether the Applicant has established that he has a pretty good chance of succeeding in the final application to the Tribunal".
The EAT noted in this particular case that the Employment Judge at first instance had not given adequate reasons for his decision to reject Mr Wollenberg's application for Interim Relief. The case was therefore remitted to a different Employment Judge for fresh consideration.
Best Practice
- This decision provides helpful guidance on the interpretation of the test laid down in s129(1) ERA.
- An Interim Relief application can be a powerful tool for employees who consider they have been dismissed for one of the following automatically unfair reasons:
- union membership or activity
- making a protected disclosure (whistleblowing)
- activities as a health and safety representative, a working time representative, a pension scheme trustee, or an employee representative for TUPE or collective redundancy purposes - An application for interim relief must be made before the end of the seventh day following the effective date of termination, and can only be made once an employee has presented a complaint of unfair dismissal to the tribunal on one of the grounds set out above. There is therefore a very short window of time to make the application and claimants must act quickly.