A recent case (Hancock v Ter-Berg and anor) has been reported and it reminds us of the right of claimants, in certain circumstances, to claim interim relief. If you think of a full tribunal hearing as a test match then interim relief is more twenty20. It is fast and a bit scary.
A tribunal can grant an employee interim relief in certain types of automatically unfair dismissal cases, (whistleblowing , trade union membership/activity and for acting as an employee representative). It will do this by ordering the employer to continue employing the employee or, if it is unwilling to employ them, to continue paying their salary until the case is finally determined. With the delays in the tribunal system this is very likely to be a significant cost. If the claimant loses the claim at final hearing there is no requirement to pay any money back to the employer.
Applications for interim relief must be made before the end of the seventh day following the effective date of termination.
The tribunal must hold a hearing “as soon as practicable” and must give the employer at least seven days’ notice of the date and time of the hearing and a copy of the application.
A tribunal can only grant interim relief if it decides that the claimant is “likely” to establish at the full hearing that the prohibited reason was the reason (or principal reason) for dismissal. The burden of proof is on the employee. “Likely” in this context means more than just a “reasonable prospect of success”. There is no need to establish that the claimant “will” succeed at trial, but the tribunal should consider whether the claimant has “a pretty good chance”.
In Hancock v Ter-Berg and anor, the EAT held that an employment tribunal may hear an application for interim relief in a whistleblowing dismissal claim under S.128 of the Employment Rights Act 1996 even where the claimant’s ‘employee’ status (and thus his or her right to claim unfair dismissal) was in dispute. The employer argued that as the right to interim relief was for employees only that it was necessary to hold a preliminary hearing on the point. The EAT held in favour of the employee. The relevant provisions of the Employment Rights Act require a tribunal to consider whether the unfair dismissal claim is likely to succeed. It decided that all elements of the complaint, including the issue of employment status, should be subject to the ‘likely to succeed’ test at the interim relief hearing.
These claims are really very rare. However if you do get one then my advice is to buckle up and be prepared for anything. I talk from experience!!
