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.

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

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

Authors
 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
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
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (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 www.mondaq.com

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 Mondaq.com’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.

Disclaimer

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.

Registration

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 unsubscribe@mondaq.com 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.

Cookies

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.

Links

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.

Mail-A-Friend

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.

Security

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 webmaster@mondaq.com.

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 EditorialAdvisor@mondaq.com.

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 enquiries@mondaq.com.

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