UK: Applications for Interim Relief in Whistle-blowing Claims

Last Updated: 25 May 2010
Article by Stephen Musgrave


Applications for interim relief under s.128 of the Employment Rights Act 1996 appear particularly attractive to high-earners with whistle-blowing claims. The successful Claimant can gain a continuation of employment order providing for full pay until final disposal of the claim (including appeal). In this article we discuss the issues relevant to such an application, the recent Raja case, and key steps for both sides.

An application for interim relief can enable a Claimant to exert a great deal of pressure on the Respondent at a very early stage in proceedings. The Respondent will incur the irrecoverable costs of defending the application, and even if successful may become more inclined to settle. Conversely, an unsuccessful application can hand the tactical advantage to a properly-advised and fully-prepared Respondent.

Statutory Background

S.128 ERA provides that an employee bringing a claim for unfair dismissal who alleges that the dismissal occurred because of his activities as a union member; health and safety representative; employee representative for the purposes of TUPE; trustee of an occupational pension fund; or because he has made a protected disclosure may apply for interim relief.

Under s.129(1), if it appears to the tribunal hearing the application that "it is likely that.... the tribunal will find that the reason ...for his dismissal is one of those specified" then it will ask the employer to reinstate or re-engage the employee on terms not less favourable than those applicable had he not been dismissed. Where the employer is unwilling to do so (as we would expect in most cases) then the tribunal will make a continuation of employment order (s.129(9)), with the effect that the contract of employment continues in force from the date of its termination until the determination or settlement of the complaint.

Any payments made under this order are not recoverable by a Respondent who succeeds at the full merits hearing, so a Claimant successful at the interim stage will effectively have their claim funded all the way through to trial and any subsequent appeal.

Relevant Case Law

The key word in the s.129(1) test for the Claimant is "likely". The leading authority remains that of the EAT in Taplin v Shippam Ltd, where it was alleged by the employee that he was dismissed for taking part in trade union activities. The statutory test for the granting of interim relief was a forerunner to, and in comparable terms to that in s.129(1).

In considering at length the meaning of "likely", Slynn J rejected the submission it was having a "reasonable prospect of success", on the basis that "likely" requires a higher degree of certainty. He stopped short of setting the threshold as high as "a real possibility of success", observing that the Oxford Dictionary defines 'likely' as 'probable'. He concluded that "the right approach is expressed in a colloquial phrase suggested to us [as] whether the applicant has established that he has a "pretty good" chance of succeeding in the final application to the tribunal."

In theory it remains open whether Taplin, a decision in a trade union case, can be binding on a tribunal in a whistle-blowing claim. This uncertainly may now have been removed by the recent decision of the EAT in Raja v Secretary of State for Justice.

Mr Raja appealed on two grounds – firstly that the Employment Judge at first instance had erred in adopting the Taplin interpretation of "likely", secondly, that she should not have refused to hear his application on the basis that the large volume of material produced to the hearing (which also related to his claims of race and disability discrimination) was not appropriate in an application for an "emergency order".

HHJ Birtles refused to depart from Taplin itself in any respect. Significantly he also declined to adopt (without giving reasons) the weaker test for "likely" set by the House of Lords in the DDA case SCA Packaging Limited v Boyle, as meaning "could well happen". He observed that the Respondent's contention that the Claimant "should be required to show specific reasons why his prospects of success are sufficiently strong to make interim relief appropriate" added a gloss which is not contained in the statutory language. This showed clearly that he did not think that the test for the Claimant in Taplin required anything to be added to it.

As to Mr Raja's second ground of appeal HHJ Birtles found that the volume of material was not in itself a reason to refuse the application. This is highly relevant to the practical and tactical considerations below.

Burden of Proof

The test in s.128 is whether it is likely the Claimant will show at the final hearing that the reason for dismissal was the making of a protected disclosure. The test in whistle-blowing cases generally (Kuzel v Roche Products Ltd) is, firstly, whether the Claimant has put forward evidence which casts doubt on the reason for dismissal advanced by the employer. If he has, then the burden shifts to the employer. Since there will be more evidence available at the full hearing it may be harder (depending on the view taken by the Employment Judge of the authorities) for a Claimant at the interim relief stage.

Tactical and Practical Considerations

The application must be made within seven days of effective date of termination and heard by the Tribunal "as soon as practicable after receiving the application." The Claimant should include full particulars of the protected disclosures and supporting evidence so as to maximise pressure on the Respondent.

Immediately upon receipt of the ET1, the Respondent should call the tribunal to ascertain the hearing date, which may be as soon as one week's time. The Respondent must maximise its limited preparation time to best effect. In particular, it should ensure that its case at the interim relief hearing is consistent with its subsequent ET3, necessitating a lot of immediate background work.

The Respondent needs to show that the Claimant does not have a "pretty good chance" of success at the full merits hearing. The cost that will result from the Claimant being granted interim relief is potentially large, especially if the Claimant is a highly-paid member of senior management. Compliance with the continuation of employment order may raise corporate governance issues if the Claimant is also a director. A wise Respondent will therefore prepare as full a defence as possible in the time available, including obtaining evidence from key witnesses such as the person who took the decision to dismiss (often the Managing Director) and preferably a second manager with specific technical knowledge relating to the purported disclosures (often the Finance Director).

Although oral evidence is not required, and is unusual at such hearings, the EAT's comments in Raja that the Employment Judge must consider the key issues relating to the claim suggest that oral evidence may become more important in the future. Conversely, it is clear that this is not an opportunity to hear the matter in full. In our experience the Employment Judge will hear Counsel for both sides and evidence-in-chief with reference to key documents, and further clarification will be sought as necessary. Cross-examination is possible, although unlikely given that the application will probably only be listed for a single day including remedy.

Given the hurdle the Claimant needs to get over, a Respondent who carries out detailed preparation in order to rebut the specific protected disclosures is likely to succeed in its defence at the interim relief stage.


It is unknown how many of the 1761 whistle-blowing applications to tribunal in 2009 included claims for interim relief but it is reasonable to assume that numbers will increase. Although it looks like a powerful weapon for a Claimant, the effect of Raja approving Taplin is that "likely" retains its ordinary meaning. Therefore a Claimant at the interim relief stage may have a higher hurdle to overcome than at the full merits hearing. Moreover, an unsuccessful Claimant risks the Judge at the interim stage making findings of fact which could later adversely affect his case. Equally helpful for the Respondent in our experience is that the Judge at the interim stage may make no findings of fact at all, leaving the Respondent's advisers free to add to the detailed work already done prior to the full hearing, thereby delivering some value back to the Respondent from what is a costly process.

Case References

Taplin v Shippam Ltd [1978] ICR 1068

Raja v Secretary of State for Justice (UKEAT/0364/09/CEA [2010] All ER (D) 134 (Mar)

SCA Packaging Limited v Boyle [2009] IRLR 746

Kuzel v Roche Products Ltd [2008] IRLR 530

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.