Interim relief applications are on the rise: should employers be worried?

A relatively unfamiliar Employment Tribunal remedy has found itself in the spotlight in the last few months – interim relief.

Interim relief applications have historically been rare and recent guidance from the Presidents of the Employment Tribunals for England, Wales and Scotland confirmed that the Tribunal system in Great Britain historically saw 20 interim relief applications a year, whereas now most individual Tribunal offices are seeing the same number per month.

This article explains what interim relief is and why employers should be aware of it.

What is interim relief?

Interim relief is a remedy available in only a limited category of automatically unfair dismissal claims. The most common among these are whistleblowing and trade union dismissal claims. Currently, a claimant must make an interim relief application within 7 days of their dismissal, although the Government is consulting on whether this deadline should be extended to 14 days. This has the potential to further increase the number of applications made if employees have more time to do so.

Where a claimant's application succeeds, the Tribunal can order the employer to:

• reinstate the employee in their role;
• re-engage them into a suitable alternative role; or
• continue to pay the employee their salary and benefits,

until the final hearing.

A successful application for interim relief can therefore have significant consequences for employers, and this is further exacerbated by the significant Tribunal backlogs we are currently experiencing, meaning that there may be years before the final hearing. If the claimant's claim is ultimately unsuccessful at the final hearing, the employer will not be entitled to repayment of any sums paid to the claimant as a result of interim relief.

As interim relief can have such significant consequences for an employer, the threshold is high, and a claimant must show that their claim of automatic unfair dismissal has a "pretty good chance of success", which the Tribunal guidance confirms is closer to certainty than probability. For this reason, applications are rarely successful and – until now – were considered rare.

If they're hard to win, should employers be worried?

Even if most claims don't meet the threshold test and are unsuccessful, there are a number of reasons why employers should be aware – and wary – of interim relief applications:

1. Interim relief applications do not follow the normal Tribunal timetable and process because their purpose is to provide temporary protection to a claimant pending a final determination of their claim. As a result:
   • There is no requirement for Acas Early Conciliation before an interim relief application is presented, meaning the first indication of a claim may be when the Tribunal papers arrive, often unexpectedly; and
   • Interim relief hearings are listed quickly, and employers may only receive 7 days' notice of an interim relief hearing, leaving employers with little time to investigate, gather evidence, prepare a response and attend a hearing.
2. Financial stakes can be high. Whilst successful applications remain the exception rather than the rule, the financial consequences can be substantial where a claimant does clear the hurdle. In light of current Tribunal backlogs, employers may end up supporting successful claimants for a significant period of time before the claim proceeds to final hearing. 
3. Defending applications can be costly. Even where applications are not successful, dealing with an increased volume in applications can present issues of its own. Employers need to be aware that considerable management time and resource may be required to deal with this uptick in applications.

Key drivers of change

The law on interim relief has not changed, so why are claimants utilising this remedy so much more often?

The recent Presidential guidance identifies two notable trends:

• a substantial rise in the number of applications being made; and
• a significant increase in the volume of accompanying supporting documentation.

The latter point may shed some light on the recent rise in popularity.

The prevalence of AI-assisted legal tools has helped claimants to identify specialist remedies and procedural options that might previously have been overlooked. At the same time, a by-product of using AI is that supporting documents and submissions are lengthy and, in most cases, unwieldy. The Guidance seeks to address this by emphasising that interim relief hearings are intended to be urgent and focused. They are not mini-trials and should not require extensive bundles or large volumes of supporting evidence.

The rise in interim relief applications may also, in part, be attributable to the substantial Tribunal backlog and associated delays to hearing schedules. Claimants facing a lengthy wait for a final hearing may understandably be enticed by the prospect of securing ongoing pay and benefits whilst awaiting the outcome of their claim.

Finally, interim relief applications can also be a means of exerting commercial pressure, regardless of the application's merits. As discussed above, employers are required to investigate, gather evidence and prepare for an urgent hearing on very short notice. By pushing up employers' costs and management time at a very early stage of proceedings, some claimants may therefore view interim relief as a strategic tool capable of increasing settlement pressure.

What this means for employers

While interim relief applications may be becoming more common, the legal threshold remains unchanged, and the remedy continues to be available only in a narrow category of claims.

However, employers should not take too much comfort from the relatively low success rate. For many organisations, the greater risk lies in the cost, disruption and management time involved in responding to an urgent application.

Employers should therefore have interim relief on their radar when making dismissal decisions, particularly where an employee has raised whistleblowing concerns or is involved in trade union activities. Even where the employer is satisfied there is a clear and legitimate reason for dismissal and due process has been followed, claimants may seek to frame their claim in a way that brings it within the scope of the interim relief provisions. As such, the documents relating to the dismissal, particularly the letter confirming the decision to dismiss, will be key evidence for the purpose of interim relief.

Preparation is critical, as hearings can take place within days of dismissal, often even before an internal investigation or appeal process has concluded. As such, it is important that employers seek legal advice as soon as possible if they receive an interim relief application.