COVID-19 has had an impact on many aspects of our lives, and many cases involving dismissals or detriment relating to the virus are now starting to reach Employment Tribunals. With that has come a surprising uplift in claims from Claimants for interim relief. So what is it, and how much of a potential headache is it for employers?
What is interim relief?
In certain types of employment tribunal claims, there is an opportunity for a Claimant to make an application to the Employment Tribunal (“ET”) for interim relief. Upon receipt of an application for interim relief, the ET can make an order that the employer continues to employ the Claimant or continues to pay the Claimant’s salary up until the final hearing.
The ET wheel, unfortunately, turns very slowly with final hearing listings currently sitting at approximately 12 months or longer. As you can imagine, should a Claimant be successful in an interim relief application, it could become extremely costly for an employer and very beneficial for a Claimant. Not only will an employer be stuck with an employee they potentially do not want on their books, but they will be required to pay them up until the claim reaches a final hearing.
As an additional detriment to employers, any financial remedy awarded by the ET to the Claimant as part of interim relief, is not recoverable by the employer, even if the tribunal ultimately find in favour of the employer at the final hearing.
Whilst this all sounds terrifying for an employer, it is worth noting that interim relief is still rare and can only be claimed under very specific circumstances for certain claims relating to automatic unfair dismissal for health and safety, trade union activities or whistleblowing.
What happens if a claim is made?
The Claimant must make the claim within 7 days of the effective date of termination, and the ET must arrange to hear the claim quickly. There is no requirement for an ACAS Early Conciliation certificate for the Interim Relief claim (although there will still be a requirement to have this for the ET1 for unfair dismissal).
The ET will arrange a preliminary hearing to determine the relief and must give 7 days’ notice to the parties.
What must be considered at an interim hearing?
The ET will have to be satisfied that the unfair dismissal claim is “likely” to succeed at the final hearing. This is a high hurdle for the Claimant, as the claim must have a significantly higher chance of succeeding than just “on the balance of probabilities”.
In addition to the above, when considering whether an employee should be reinstated or re-engaged, an ET will consider the employers comments on the same and whether trust and confidence has irretrievably broken down.
How to defend the claim?
Unfortunately, defending such a claim is likely to be costly, although considerably less costly than paying a salary to an ex-employee for a significant period of time. It is important to take legal advice quickly, as you will likely only get 7 days’ notice for the hearing and it will likely take place before the deadline to file your ET3 response. The defence will need to focus on areas where it is possible to show that there is weakness in the claim, and that the Claimant is not likely to succeed at the final hearing.
A final word of warning
At this time, this remedy is only available for a very narrow set of dismissal claims, and employers could be forgiven for thinking “this doesn’t really apply to me”. However, there are two factors to consider:
- even if you are an employer with no trade union representation, unfair dismissal for whistleblowing is also covered and these sort of claims could potentially rise in the face of COVID-19 responses; and
- a recent case at the EAT (heard in December 2020), Steer v Stormsure Ltd, has raised the possibility that interim relief could also be claimed in discrimination unfair dismissal cases. In this case, the EAT determined that there is no justification for the difference in treatment for whistleblowing cases and discrimination cases under the European Convention on Human Rights, but that it does not possess the right to make any declaration of incompatibility (which could prompt a change in the law). It has referred the case to the Court of Appeal for a ruling on how the Equality Act should be interpreted. It is likely the government will intervene, but there is also the possibility that the law will be changed to include certain discrimination cases in the narrow band of claims for which a remedy of interim relief is sought.
What does this mean for you or your business?
At the moment, the scope for who can claim for interim relief is very tightly defined, and the burden of proof is a high hurdle for a Claimant to reach. However, it is worthwhile being aware of the possibility of interim relief, especially in the circumstances set out above.
Interim relief has the potential to be extremely costly for employers. Even if the claimant’s claim itself is not successful, the cost of defending a claim at such short notice is likely to be high.
We will watch the case of Steer v Stormsure Ltd carefully and update you when this is heard at Court of Appeal level. It is clear that any extension of interim relief to include discrimination cases could blow the ET wide open with requests and increase financial liability of employers facing such claims greatly.
What do you need to be doing now?
For now, there is nothing to do but keep this on your radar. We have experience in defending interim relief cases, so please contact us if you feel there is any risk to your business.
These notes have been prepared for the purpose of articles only. They should not be regarded as a substitute for taking legal advice.