Why changes to interim relief could be a costly business for HR

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The recent case of Steer v Stormsure has caused a stir in employment law and HR because it has potential to significantly expand the scope of interim relief applications to allow them in discrimination cases. 

Interim Relief is an order by the Employment Tribunal that preserves your employment until after the tribunal has decided your claim for unfair dismissal.

The potential impact on businesses is huge. If an interim relief application is successful, the tribunal can order reinstatement of an employee back into the same job they were dismissed from, re-engagement into a comparable job or, in the majority of cases, back on the payroll until the final claim has been heard, which could be many months.

Steer sought interim relief for sex discrimination and victimisation. The Employment Appeal Tribunal (EAT) found that the absence of interim relief in discrimination claims was in breach of article 14 of The European Convention on Human Rights (ECHR). 

The EAT could not go so far as interpret the Equality Act 2010 to include interim relief, nor could it grant a declaration of incompatibility. 

However, such a declaration could be granted by the Court of Appeal and Steer was given leave to appeal the decision to seek a declaration. The hearing to consider this is scheduled for 25/26 May 2021 and if granted, it will place significant pressure on the government to amend the Equality Act 2010 and open the flood gates for increased numbers of applications.  

Interim applications remain rare

At present, interim relief applications are rarely sought or granted because of the strict criteria that must be met in order to make such an application.

  • The applicant needs to be an employee (there is no need for two years’ qualifying service).
  • The claim must be brought within seven days of the effective date of termination, and they can make the application during their notice period. Taking advice within such a short period is a major barrier to making the applications.
  • The seven-day time limit cannot be extended and there is no requirement to go through the Acas Early Conciliation.
  • The Order will only be made if the claim is likely to succeed, which is a high threshold.
  • It is only open as a remedy in certain types of claims. These are narrow in scope, but include claims relating to whistleblowing or trade union activities.

Awareness of the remedy is rising along with the number of tribunal claims. The pandemic has highlighted the possibility of interim relief applications, particularly with employees being dismissed for raised protected disclosures and increases in union activities related to employers’ failures to take safety measures to protect their workforce.

The fact that applications have the effect of skipping the queue also makes them attractive. 

Multi-day tribunal hearings are taking upwards of 12 months to be listed, whereas interim relief hearings must be heard “as soon as is practicable” to help ensure that employees are not disadvantaged, particularly during the pandemic.

Handling an interim relief application

The short answer is that you should respond and quickly.  Prepare a detailed ET3 and statement from the dismissing officer, setting out why the employee was dismissed, along with any relevant supporting evidence. 

While it is important that you provide the detail in these documents to explain the genuine reason why the employee was dismissed, it is not necessary to provide the minute detail that may be needed at a full hearing. 

The tribunal will focus on understanding whether the claimant will meet the high threshold required to secure interim relief, or not.  If you can show a genuine reason for dismissal, it is unlikely that an application will be successful.

 

Barry Ross is director and partner at Crossland Employment Solicitors