Interim Relief

Published 8 February 2021

BACKGROUND

Ex-employees can apply for interim relief in relation to claims of automatically unfair dismissal where they allege the dismissal was on one of a limited number of grounds – most commonly whistleblowing and trade union membership or activity. Applications for interim relief must be made within seven days of the date on which employment ends, and the tribunal should hear the application urgently. Interim relief will only be granted if the tribunal finds that the claimant is likely to be successful. If the application is successful, employers must either continue to employ the ex-employee until the date the full claim has been determined, or pay them their salary and provide them with all benefits until that date. Given the current backlog of tribunal claims, the employer would be likely to have to continue paying the successful applicant for a long time before their full claim is heard.

Applications for interim relief have, until recently, been relatively rare. However, there has been a noticeable increase in interim relief claims in recent months, and employers should be aware of the increased risk of such claims.

INTERIM RELIEF HEARINGS MUST BE HELD IN PUBLIC

The EAT has held that interim relief hearings must be held in public unless an order restricting publicity is made.

THE FACTS

Mr Millet was employed by Queensgate Investments LLP. His employment was terminated, ostensibly by reason of redundancy. He brought several claims in the employment tribunal, including a claim that the real reason for the termination of his employment was that he was a whistleblower. His allegations of wrongdoing included allegations of sexist, racist and homophobic language, allegations against Queensgate’s CEO of breaches of fiduciary duty and serious misconduct, and allegations of fraud. Mr Millet applied for interim relief in relation to his whistleblowing unfair dismissal claim.

Queensgate argued that the application for interim relief should be heard in private and/or that an order should be granted preventing or restricting the public disclosure of any aspect of the proceedings. This was on the basis that it would suffer reputational damage resulting in economic damage. The employment judge held that interim relief applications should be heard in public, and declined to make the order. Queensgate appealed to the EAT.

The EAT dismissed the appeal. Based on the wording of the tribunal rules, interim relief hearings should, unlike preliminary hearings, be heard in public. The EAT also considered whether the tribunal should have granted a privacy order. Referring to existing case law, it noted that the risk of reputational damage will not usually be sufficient reason to depart from the principle of open justice, even if the reputational damage might result in significant loss. The EAT did not exclude the possibility that commercial damage might prove the basis for an order restricting publicity, but there would have to be full, frank and totally compelling evidence that the publicity would have such catastrophic consequences that justice could not be done without the restriction. The tribunal had been entitled to conclude, on the facts of this case, that the evidence put forward by Queensgate had not gone beyond evidence of commercial embarrassment.

WHAT DOES THIS MEAN FOR EMPLOYERS?

Given the principle of open justice this case is not wholly surprising. However, it will be unwelcome for employers underlining, how difficult it can be to protect themselves from the reputational damage which is often the greatest risk in whistleblowing claims.

Queensgate Investments LLP and ors v Millet UKEAT/0256/20/RN

INTERIM RELIEF MAY BE AVAILABLE IN DISCRIMINATION CLAIMS

The EAT has held that the absence of interim relief for claims of discrimination in employment may be incompatible with European law

THE FACTS

Ms Steer brought a claim against her employer, Stormsure Ltd, alleging that her dismissal had been an act of sex discrimination and/or victimisation. She applied for interim relief. Interim relief is not currently available in the United Kingdom for discrimination claims, and the employment tribunal did not therefore have jurisdiction to hear her application.

Ms Steer appealed to the EAT. She argued that, under principles in European law of effectiveness and equivalence, the right to interim relief should be read into UK discrimination legislation. The EAT dismissed this ground of appeal.

Ms Steer also argued that discrimination legislation in the United Kingdom is incompatible with the European Convention on Human Rights (the ECHR). The EAT held that this is likely to be the case, and that the difference between whistleblowing claims, where interim relief is available and discrimination claims where it is not, had not been justified.

The EAT does not have the power to make a declaration of incompatibility. Ms Steer was therefore given permission to appeal to the Court of Appeal, which can make such a declaration.

WHAT DOES THIS MEAN FOR EMPLOYERS?

This is one to watch if Ms Steer’s appeal is successful, the potential ramifications for employers are significant. Employees bringing discriminatory dismissal and victimisation claims could apply for interim relief, leaving employers at risk of paying salary and providing benefits to ex-employees for many months, perhaps years, before the claims are heard.

Steer v Stormsure Limited UKEAT/0216/20/AT (V)