UK: Interim Relief – A Trap For Unwary Employers? (Employers' Law - Winter 2011)

Last Updated: 6 December 2011
Article by Catherine Wilson

The Government's proposal to increase the qualifying period for an ordinary unfair dismissal claim from one to two years has received considerable publicity.

Irrespective of an employee's length of service, employers should never think they can simply dismiss with impunity. For example, it is generally well known any dismissal which is linked to a protected characteristic such as sex, race, age, disability or sexual orientation can give rise to a claim for discrimination regardless of the employee's length of service. Slightly less well known is that a short serving employee is also still able to bring a claim of unfair dismissal if the dismissal is linked to them asserting a statutory right or "whistleblowing".

Recent case law has identified an additional risk for employers, namely the remedy of interim relief. This relatively rare provision is intended to preserve the status quo pending final determination of an unfair dismissal claim. There is no qualifying service period and the impact of a successful application can be extremely expensive for an unsuccessful employer.

If an employee considered that he/she has been unfairly dismissed on certain specified grounds which make dismissal automatically unfair, he or she can make an application to an Employment Tribunal for interim relief. If the order is made the effect will be to convert the dismissal into a suspension on full pay until there can be a full tribunal hearing.

These monies cannot be recovered even if the individual's claim ultimately fails, and given the length of time claims can take to arrive at tribunal this can be a significant cost! In other words, the dismissed employee is put back into the job from which they were dismissed thereby avoiding the possible difficulties of seeking re-instatement or reengagement if significant time has elapsed since dismissal. The employee must apply to be reinstated.

The specific dismissal grounds for interim relief are as follows:

  • whistleblowing;
  • dismissal for seeking to exercise the right to be accompanied at (or to accompany someone else to) a disciplinary or grievance hearing;
  • dismissal for acting as a worker's representative in relation to health and safety, Working Time Regulations or otherwise;
  • dismissal for acting as an employee trustee of an occupational pension scheme; and
  • dismissal for a trade union reason such as trade union membership, activities or promotion or obstruction of official trade union recognition.

An aggrieved employee must move quickly. There is a seven day time limit from the date of dismissal for making an interim relief application. Recent case law has also confirmed the other matters which a 'would be claimant' would need to establish to succeed in their application.

A high profile application was reported in the case of Thomas and London Underground 2011. In this case, the claimant had worked for London Underground for 29 years as a train operator. It was accepted by all sides that the claimant was an active member of the RMT union. He was dismissed for gross misconduct namely the alleged bullying of a fellow employee and a station supervisor. The incident took place at Morden Station on a day when the claimant was manning a picket line and "passions were inflamed". The only issue for consideration was whether it is likely that a full tribunal would find that the claimant had been unfairly dismissed because he had taken part in the activities of an independent trade union at an appropriate time.

Following consideration of the evidence, the tribunal were satisfied that it was likely that the tribunal at the full hearing would find that the claimant had been unfairly dismissed. Given the refusal of London Transport to re-engage or reinstate the claimant, the tribunal made an order for the continuation of employment.

As a result, the claimant received on going payment in full until either the termination or settlement of the complaint. The claimant's employment was also deemed to be continuous for the purposes of his entitlement to service related benefits such as seniority, pension rights and other benefits derived from his employment, in this particular case a travel pass.

It will be clear that the meaning of "likely to succeed" is a key element of any determination. The standard required has also recently been considered by the Employment Appeal Tribunal (EAT) in the case Ministry of Justice v Sarfraz later in 2011.

Mr Sarfraz was employed as a legal advisor in the Gloucester Magistrates Court. Following concerns about his performance, his relationship with his supervisor deteriorated resulting ultimately in his dismissal for misconduct. The claimant made an application for interim relief claiming amongst other things that he had been dismissed for whistleblowing and therefore his dismissal was automatically unfair.

His original application for interim relief was successful. The EAT held that it should be overturned on the basis that the tribunal at the full hearing were not likely to uphold his claim. The EAT were not prepared to set a precise percentage threshold.

However, it was held that "likely" for these purposes does not mean simply "more likely than not", that is, at least 51% but connotes a significantly higher degree of likelihood. In other words, it needs to be something nearer to certainty than mere probability.

The Sarfraz case should provide some reassurance to employers. However, it highlights the need to ensure fair process and careful dealing of grievances. Send an individual away with a compromise agreement and you may just find yourself dealing with an application for interim relief!

Thomas Eggar LLP is a limited liability partnership registered in England and Wales under registered number OC326278 whose registered office is at The Corn Exchange, Baffin's Lane, Chichester, West Sussex, PO19 1GE (VAT number 991259583). The word 'partner' refers to a member of the LLP, or an employee or consultant with equivalent standing and qualifications. A list of the members of the LLP is displayed at the above address, together with a list of those non-members who are designated as partners. Regulated by the Solicitors Regulation Authority. Lexcel and Investors in People accredited.

Thomas Eggar LLP is not authorised by the Financial Services Authority. However, we are included on the register maintained by the Financial Services Authority so that we can carry on insurance mediation activity which is broadly the advising on, selling and administering of insurance contracts. This part of our business, including arrangements for complaints and redress if something goes wrong, is regulated by the Solicitors Regulation Authority. The register can be accessed via the Financial Services Authority website. We can also provide certain further limited investment services to clients if those services are incidental to the professional services we have been engaged to provide as solicitors.

Thesis Asset Management plc, our associated financial services company, provides a comprehensive range of investment services and advice. Thesis is owned by members of Thomas Eggar LLP but is independent of and separate to it. No lawyer connected with Thomas Eggar LLP provides services through Thesis as a practicing lawyer regulated by the Solicitors Regulation Authority. Thesis is authorised and regulated by the Financial Services Authority. Thesis has its own framework of investor protection and professional indemnity cover but Thesis clients do not enjoy the statutory protection of solicitors' clients.

The contents of this article are intended as guidelines for clients and other readers. It is not a substitute for considered advice on specific issues. Consequently, we cannot accept any responsibility for this information or for any errors or omissions.

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