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Preventing dismissal: ‘interim relief’

Tribunals have power, in certain limited circumstances, to order your employer to continue your employment until your unfair dismissal claim has been heard. This is called ‘interim relief.’ The power isn’t much used, but it is potentially very valuable.

When you can get it

The three key facts about interim relief are:

  • You can only apply for it if you are saying that you have been dismissed for a protected disclosure (‘whistle blowing’), or because of your activities as a trade union member, a health and safety representative, an employee representative for the purposes of TUPE consultations, or a trustee of an occupational pension fund.
  • You will only get it if the tribunal considers – after a short hearing arranged fast – that it is likely that the tribunal that hears the main claim will find that your dismissal was for one of these reasons.
  • You have to claim it within 7 days of your last day of employment. If you are dismissed with notice, you can present your claim before dismissal takes effect. There is no power to extend time.
  • What it means

    If you get it, you are either reinstated into your old job, or re-engaged in a comparable job, or else (which is probably the most likely outcome) your employer is simply ordered to carry on paying you in an arrangement rather like suspension on full pay. Claims can take many months and sometimes a year or more to come to a hearing, so getting the tribunal to order your employer to give you your job back meanwhile – or at least carry on paying you – could make a big difference.

    Practicalities

    Because of the very short deadline for claiming interim relief, applying for it means working fast. The usual warnings about the cost of instructing lawyers are relevant, only more so: urgent work tends to be more expensive than non-urgent work; and your choice of lawyer is likely to be more restricted than if you had a couple of months to play with.

    Time for making a considered decision about whether or not to go ahead with the application at all will be squeezed, too: you and your adviser will be making decisions under considerable pressure of time with less information and less thought than you’d like. The result could be that you spend a lot of money making an urgent application that you’d actually have been advised not to pursue if there had been more time to consider its strength.

    Getting free representation in time for an application for interim relief will be even more difficult. Lawyers in Citizens Advice Bureaux and law centres are almost always rushed off their feet: even if you’re lucky enough to get help, it can easily take several weeks just to get an appointment.

    This all means that if you want to try for interim relief, you may not have much realistic option other than to make the application yourself.

    There’s no special form for applying for interim relief: you’ll need to complete an ET1 form in the usual way (only faster), and write in box 6.1 under ‘What compensation or remedy are you seeking?’

    interim relief under section 128 of the ERA 1996

    Because applications are quite rare, and tribunal staff may not be looking out for them, it might also be an idea to write in box 7.1 something like:

    This claim includes an application for interim relief under section 128 of ERA 1996, so a PHR to determine that application will be required as soon as practicable.

    The hearing

    The tribunal will conduct a PHR (pre-hearing review) to determine the application. It has to do this ‘as soon as practicable’ after receiving it. That means you can’t relax after rushing to get your ET1 presented during the first 7 days after dismissal: you’ll need to be ready for the hearing of the application very soon after that.

    At the PHR, the tribunal can consider oral and documentary evidence. Your job is to persuade the tribunal that your complaint that you have been dismissed for one of the prohibited reasons is ‘likely’ to be successful at a full hearing. Because the application is supposed to take place so quickly, you can’t expect the tribunal to consider a large volume of evidence. Keep both oral and documentary evidence to a minimum: select your very best points, and focus on them; and if you get the chance to cross-examine any witnesses on the other side, keep that short too. Apart from anything else, you don’t want to give them a practice run at answering all your questions before the main hearing. If your story is long and complicated, you are unlikely to succeed in this application: see the EAT’s judgment in Raja v Secretary of State for Justice. The application is probably only worth making if it’s pretty obvious that you’ve been dismissed for whistle-blowing or one of the other prohibited reasons.

    Acknowledgment

    This post was inspired by a useful article on the same subject by Stephen Musgrave of Bird & Bird in the Employment Lawyers Association Briefing. You can read his article – reproduced by kind permission of the author and ELA – here.

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