Interim relief claims during the covid-19 pandemic
By Lucy Neil
Lucy Neil examines the effects of covid-19 on interim relief in the ET
Interim relief claims during the Coronavirus pandemic
Until recently, interim relief was rarely sought and even more rarely granted by Employment Tribunals (ET). For claimants, this remedy is both lucrative and possibly tactically advantageous. If the claimant succeeds, an employer can be required to reinstate them. If the employer is unwilling, they would be ordered to continue to pay the claimant’s salary until the case is finally determined.
It is easy to see the attraction. Any claimant’s salary paid does not require returning should the claim be unsuccessful at final hearing. In addition, the effect of the granting of interim relief may improve the claimant’s chances of a full reinstatement or re-engagement order being granted if the tribunal upholds the claim.
Covid-19 has increased the likelihood of claimants’ success in interim relief, applications, most likely following dismissal for making a protected disclosure about non covid-19 compliant working practices. However, the practicalities of raising an application for interim relief during the pandemic (limited or delayed access to legal advice) are likely to have reduced the number of claims.
These claims have historically been few in number, partly due to the fact that applications can only be made for a discrete category of claims: unfair dismissal claims and certain types of automatic unfair dismissal cases (s.128(1) of the Employment Rights Act 1996 (ERA 1996)).
Automatically unfair dismissals which are a consequence of the claimant having made a protected disclosure (whistleblowing claims) can qualify for interim relief. It comes as no surprise the pandemic has increased the incidence of protected disclosures of health and safety breaches for endangerment of individual(s) by employees (as per section 43B(1)(d), ERA 1996). The simple act of attending work to interact closely with others has become a health and safety risk, with potentially fatal consequences.
The timing of the application is also a distinct feature. Unfair dismissal claims to the ET notoriously have to be made within the “three-months-less-one-day” timescale following effective date of termination (EDT). For interim relief claims, this timescale is vastly reduced, allowing claimants a mere 7 days to lodge following EDT. The need for ACAS early conciliation is also dispensed with.
The covid-19 closures of office premises prevented or discouraged claimants from seeking advice. Traditional solicitor-client meetings became nigh-on impossible. With the inevitable delays caused by claimants adjusting to new models of advice-seeking, it is easy to see how the shortened interim relief deadline would be missed by the claimant. Due to the rarity of interim relief claims little is known by lay persons of the remedy or short timescales involved. Additionally, unlike ordinary time barred claims, an extension of time to lodge the claim is only permitted on occasions of deliberate fraud by employers, causing real injustice to employees (Grimes v Sutton London Borough Council  ICR 240). Once the deadline for has passed, the chance to claim is usually lost.
The interim hearing
The hearing itself also presents practical difficulties, rendered more difficult by social distancing. The ET are bound to determine the application "as soon as practicable" and must give the employer at least 7 days' notice of the date, time and place of the hearing, and a copy of the application. Again, the short deadline between lodging and the hearing gives claimants seeking legal representation a small window in which to do so. Given the burden of proof rests with the claimant (Bombardier Aerospace v McConnell  IRLR 51), it is advisable to be prompt.
The application is heard at preliminary hearing with an Employment Judge sitting alone (Rule 55, ET Rules of Procedure 2013), to determine whether the claimant is “likely” to establish at the full hearing that the prohibited reason was the reason (or principal reason) for the dismissal (s.129(1) ERA 1996) – a tall order for a claim in which the evidence is not being tested in full. It is rare for oral evidence to be led and the Judge will usually evaluate the merits on the written statements and documents disclosed.
The slow progression of cases through the ET created by the increased number of claims will make the prospect of an interim relief remedy more attractive than ever. If awarded, the employer could be required to pay the employee for a long period. However, the pandemic’s practical difficulties of seeking advice may create the situation of fewer claims being brought, despite their increased likelihood of success. Allowing the claimant a period of one month would ameliorate the current difficulties with accessing advice, without compromising the justified barriers to gaining interim relief. Given the cost of successful claims to the employers, it is fitting that the burden of proof rests with the claimant and the test is difficult to meet. Allowing an increase in the time allotted to lodge such claims would improve access to justice issues created by the pandemic.
Lucy Neil is an employment lawyer with Thompsons Solicitors: thompsons-scotland.co.uk