In brief
The Presidents of the Employment Tribunals in England, Wales, and Scotland have issued new guidance on applications for interim relief following a substantial increase in the number of such applications. These applications take up significant Tribunal resources, can be costly to defend and yet rarely lead to success for the employees pursuing them.
In this brief update, we summarize the guidance issued as well as providing some practical advice for employers on how to deal with these applications.
Key takeaways
- There has been a huge uptick in interim relief applications in the Employment Tribunal, fueled by use of generative AI to seek advice and create documents.
- If successful, these applications may require employers to re-instate or re-engage employees until the final hearing, often several years away. In the alternative, employers may face a continuation order, whereby they have to meet employment costs but the employee is not required to work.
- Employers are only given seven days’ notice of such applications before the interim relief hearing.
- This new guidance provides practical observations on when such applications are more likely to succeed, with a view to ensuring that cases are approached thoughtfully and proportionately.
- Regardless of whether this guidance achieves its aims, there are some steps employers can take to be prepared for when an interim relief application lands on their desk.
In more detail
Interim relief – a recap
- Interim relief is available as an emergency remedy in certain types of automatically unfair dismissal claims, particularly in connection with whistleblowing complaints.
- If successful, an employee will be awarded re-instatement from the date of termination until the final decision on their claim. Employers who do not wish to re-instate or re-engage employees in these circumstances will still be obliged to pay salary for this period even if the employee is not working.
- However, to be successful, employees must show that their automatic unfair dismissal claim is ‘likely’ to succeed. This is a high bar and means that the claimant has a “pretty good chance of success” at the final hearing. As the guidance explains, it is “something nearer to certainty than mere probability.”
- The Tribunal must consider all elements of the claim, including whether a protected disclosure has been made and the reason for dismissal.
The guidance
- The guidance notes that, given the high threshold to obtain the order, the vast majority of interim relief applications are unsuccessful. As a result, historically there has been a relatively limited number (around 20 per month across the entire Tribunal system).
- Recently however there has been a surge in these applications (with most offices now each receiving around 20 per month), and a mushrooming in the volume of supporting documents. The Tribunal attributes these developments largely to the use of AI which often results in submissions that are long, complex, replete with irrelevant material and lacking in focus.
- Litigants are reminded that they are responsible for ensuring that the content of their submissions is concise, relevant and accurate.
- The guidance sets out in clear language the legal test which will be applied to any such application, as well as the procedural steps which need to be followed.
- It also aims to provide practical guidance to employees on how the test works in practice, emphasizing how difficult the legal test is to surmount and the ways in which employers are able to defend these claims.
- Employees are encouraged to consider how they would address each element of the test for a protected disclosure and how they would challenge an employer’s explanation of the reason for dismissal. The guidance also explains that it can be more powerful to focus on disclosures which are “easily identified and explained” rather than a large volume where the link to the dismissal is less obvious.
Practical steps
- Notwithstanding this guidance, we anticipate that we will continue to see an increase in the number of interim relief applications made. There is a strong tactical advantage for Claimants in bringing an interim relief application, particularly where hearings on the substantive claim may be listed several years into the future.
- Employers should therefore put themselves in the best position by taking the following proactive steps:
- Alerting your mailroom and anyone else who is likely to receive such an application that they should be actioned immediately – employers cannot afford to lose precious preparation time, given the short time between notice of the application and the interim relief hearing.
- Retaining all documentation in an easily accessible location for all dismissals but particularly where there may be a chance of the employee claiming to have blown the whistle – this is good HR practice generally, but is particularly important in this context. In order to defend such applications you will need to be able to challenge both the status of the alleged protected disclosures and causation. Cogent evidence on the reason for dismissal is key.
- Put in place a playbook which can be easily deployed if an application like this is received, rather than scrambling to work out the internal process and points of contact while the clock ticks down on the hearing date.
- Although there is a lot of work involved in defending these applications, as mentioned, many of them do not succeed. That said, it is important to prepare well and provide a robust defence, given the financial consequences of losing, and the need to put yourself in a strong position to defend the substantive claim of automatic unfair dismissal, which continues even if the interim relief application fails.
For specific advice on this development and to help your business navigate this area, please contact your usual Baker McKenzie contact.
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