Anyone involved in Employment Tribunal litigation will be very aware of long delays in the employment tribunal system and that many cases are not being listed for hearings until more than a year after issue of a claim, partly as a result of the huge disruption caused by the COVID-19 pandemic. Employment lawyers are pretty much universally agreed that these significant delays are causing real issues around access to justice for claimants who, in meritorious cases, have potentially a long wait for any financial remedy.
Immediate financial remedy via interim relief
There may be scope to achieve an immediate financial remedy from an Employment Tribunal for some employees if they are quick off the mark. Many employers and executives alike are unaware of the availability of interim relief in certain automatic unfair dismissal cases where the individual claims to have been dismissed for one of a number of specified statutory reasons, including whistleblowing, and certain cases involving trade union activities or designated health and safety activities.
An employee applying for interim relief must apply to the Employment Tribunal within seven days of termination of employment. That is a really short window to put together the grounds of claim, particularly if the employee has not had advance notice of their dismissal. An employee will therefore need to make an immediate decision on a very important judgment call in the litigation.
An interim relief application triggers an emergency procedure designed, in appropriate cases, to preserve the status quo pending the final hearing of the claim. A Tribunal will list an urgent hearing, on no less than seven days’ notice to the employer, at which the Judge must determine whether the employee is “likely” to succeed at the final hearing in showing the reason for the dismissal was for the prohibited reason claimed, for example, the making of a protected disclosure as a whistleblower. The Judge does not hear any oral evidence or need to make any findings of fact at the interim relief hearing, but should assess the employee’s likelihood of success on the basis of the limited information before it, likely those documents and other evidence the parties have been able to gather in the short time available before the interim relief hearing. It will often be a scramble for an employer to gather what evidence it can as to the reason for dismissal.
If the employee is successful, then the Judge must ask the employer whether it is willing to reinstate or re-engage the employee on terms no less favourable than those on which the employee was employed prior to the dismissal. If the employer refuses, then the tribunal must make an order for the continuation of the contract of employment, which is, in effect, an order for suspension on full pay and benefits until the claim settles or the final hearing. Given cases are not currently being listed for potentially a year or more this is an incredibly valuable remedy for the employee, who in the meantime, is not under any obligation to mitigate their loss in respect of those earnings in advance of the final hearing. Furthermore, any payments made under a continuation of contract order are not recoverable by the employer if the employee ultimately loses their claim at the final hearing.
A useful tool for employees in the current environment?
Importantly, unlike substantive final hearings in the employment tribunal, interim relief hearings continued to proceed during lockdown, in our experience, remotely via a virtual platform enabling the parties and the public to access the hearing via video link.
So is this route to an immediate remedy the glimmer of hope employees are looking for when facing significant delay to getting their case heard?
In most cases, probably not:
- Firstly, it only applies to a very limited group of cases (eg whistleblowing), and is not available for standard unfair dismissal or discrimination claims.
- Secondly, I’d advise any executive to think very carefully (albeit speedily!) before taking this step. It is very challenging for claimants to convince a judge that they are likely to win their claim at this early stage.
- In particular, an individual has the burden of showing that they have a “pretty good chance of success” (a high hurdle) in circumstances where a full disclosure process is unlikely to have yet taken place and they will not be in a position to challenge any witness evidence via cross-examination.
- Furthermore, when an individual makes an application, they may not know what documentary evidence an employer has available to rebut their claim.
That said, in the right case, an application for interim relief can be an effective and powerful tool, and may be a means to put pressure on an employer to engage in settlement discussions, in circumstances where otherwise an employer may take the view that an employee simply won’t be in a position to wait for a financial remedy by going through the creakingly slow tribunal process in the normal way.
So, in short, for executives it is important to at least consider whether interim relief is a viable route. And for employers at least be aware that you may face such an application - as you are unlikely to get much notice of it from the tribunal!
If you require further information about anything covered in this blog, please contact Eleanor Rowswell, or your usual contact at the firm on +44 (0)20 3375 7000.
This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.
© Farrer & Co LLP, August 2020