In this edition of the employment insights podcast, Rebecca Cairney and Reehan Chaudhry, discuss the recent increase in interim relief applications within employment tribunals. They explain that interim relief is an exceptional measure used to suspend a dismissal or order back pay in cases of automatic unfair dismissal, such as whistleblowing or trade union activity.
Transcript
Rebecca Cairney: Hello everybody and welcome to the next edition of the Employment Insights podcast.
My name is Rebecca Cairney, and I am a Partner in the Employment, Pensions and Immigration team based in Liverpool, and I'm joined today by my colleague, Reehan Chowdhury, who's a Principal Associate, based in the Liverpool Employment team. Hello, Reehan, and thank you so much for joining us today.
Reehan Chaudhry: Hello there, everybody.
Rebecca Cairney: Good to have you with us. So today we are going to discuss a topic that has historically been quite rare to come across, or certainly unusual to come across in the Employment Tribunal, but something that we've definitely seen a huge increase of over recent months, and so much so that there's been some new presidential guidance issued. So, I understand, Reehan, we're here to talk about interim relief.
Reehan Chaudhry: That's right, yes. So, essentially, interim relief is an exceptional, or in some cases, an emergency measure, granting a type of injunctive relief to suspend a dismissal or order back pay in circumstances where section 128 of the Employment Rights Act 1996 applies, or section 161 of the Trade Union Labour Relations Consolidation Act (TULRCA) 1992 applies.
So, the important thing to note is that interim relief can only be granted if the claimant can prove they are likely to succeed with a claim for automatic unfair dismissal.
Namely, specified union membership or activity, or if they've made a whistleblowing disclosure.
Or they've been dismissed for carrying out activities as a health and safety rep, a working time rep, an occupational pension trustee, or an employee rep for collective redundancies.
Rebecca Cairney: Okay, and so I suppose the first port of call then is why has the presidential guidance been issued?
Reehan Chaudhry: Hmm. So, issued very recently on the 22nd of June 2026.
And the main reason is to stem the growing number of applications due to AI.
Paragraph 4 of the presidential guidance notes there's been a significantly large increase in protected dismissal [SN2.1][and associated interim relief] cases.
In the previous years, the tribunals have reported 20 per annum. Now, most offices are receiving 20 a month, which represents a huge increase. And these applications have been accompanied by a growth in the amount of paperwork attached to these applications.
The presidential guidance reports that the increased number is having an adverse reaction on the administration of justice, because other hearings must be postponed or delayed to make way for these applications, which take a priority.
The presidential guidance also notes that there has been an increase in satellite litigation arising from interim relief hearings, such as cost applications.
So what the presidential guidance seeks to do is to provide an up-to-date framework reminding litigants in person and assisting the employment tribunals with determining applications correctly.
So, judges must have regard to the presidential guidance, but they are not bound to it exclusively.
Paragraph 27 of the presidential guidance confirms that the default listing for an interim relief hearing will be three hours by CVP online before a judge sitting alone. Time will be extended exceptionally.
One hour for a judge to read the papers. 30 minutes each for each party to make submissions, and 1 hour for a judge to decide the case.
Rebecca Cairney: Okay, so quite tight time scales there.
And I suppose, could you then describe what factors must be considered by the Employment Tribunal when they're considering interim relief applications?
Reehan Chaudhry: Sure. Employment tribunals will only grant interim relief if a claimant can show that it's likely that they will succeed at the full merits hearing by showing that the dismissal was due to an automatic unfair dismissal reason.
And so the definition of likely has been given some gloss. So likely does not simply mean more likely than not, but a significantly higher degree of likelihood. Something near to certainty than mere probability. That's what President Underhill said in the Ministry of Justice v Sarfraz, a 2011 case.
The burden rests squarely on the applicant or the claimant.
Therefore, if a claimant cannot satisfy the employment tribunal that their automatic unfair dismissal claim has a pretty good chance of success, regardless of its other merits, an order cannot be made.
It needs to be nearer to certainty than mere possibility.
And that was re-emphasized in the case of Taplin v C Shippam Limited, a 1978 case.
Therefore, it's unsurprising that the test imposed by section 129(1) of the Employment Rights Act 1996 and section 163(1) of the TULRCA Act 1992 has been interpreted by the tribunals very stringently.
Rebecca Cairney: Yeah, that's all understood, Reehan, thank you.
And so what are the practical steps that the parties need to take then if they're involved in an interim relief application?
Reehan Chaudhry: Sure. So the hurdles that have been set are extremely high. The claimant has to present an ET1 and application for interim relief before the end of the seventh day of the effective date of termination or before their notice period expires.
If the claimant or applicant is claiming automatic unfair dismissal for a trade union related reason, they need to obtain a certificate from an authorised trade union member confirming the day the claimant either proposed to be a trade union member or was actually one.
And that, the trade union official had reasonable grounds for supposing that the reason for dismissal was the one alleged in the complaint. That's section 161(3) of the TULRCA 1992 Act.
Important to note, there's no need for the claimant to go through ACAS first if the claim is confined to unfair dismissal. However, if it relates to whistleblowing, an early conciliation certificate is required.
The Employment Tribunal must determine an interim relief application as soon as reasonably practicable and give at least seven days notice to the respondent.
Applications to postpone interim relief are rarely granted, save in exceptional circumstances. The one reported case I could find, cited deliberate fraud by the respondent employer. So, exceptionally, unique circumstances would be required for the postponement.
And important to note, the interim relief will be treated as a preliminary hearing.
Rebecca Cairney: Okay, thank you. And so you mentioned earlier that the hearings are supposed to be limited to around three hours.
Rebecca Cairney: What could employers expect if, you know, they are faced with this type of application and they do need to go to an interim relief hearing?
Reehan Chaudhry: Sure. Normally, you'd expect to see a judge sitting alone.
Exceptionally, a judge may call for a panel in very complicated cases. However, that's extremely rare.
And at this particular hearing, the judge can consider preliminary matters, like employee status, and arguably time points, based on the ACAS certificate for whistleblowing cases. Important to note, oral evidence is exceptional due to the summary nature of the proceedings where the Employment Tribunal is not testing live evidence, but determining issues on the papers.
So, normally, papers are confined to the pleadings. But, the tribunal has a degree of flexibility, so an absence of a formal witness statement will not be fatal to an application.
On the other hand, if parties bring hundreds of documents to the tribunal for determination, the correct approach to be adopted by the judge will be to ask the parties to identify the relevant parts
for the purposes of the interim relief application.
Rebecca Cairney: Okay, great, thank you, Reehan. And so, what are the consequences, then, if interim relief is granted against the employer?
Reehan Chaudhry: So, huge consequences potentially. The judge will ask if the employer is prepared to reinstate or re-engage the individual.
If the employer refuses, then the employment tribunal will go on to consider whether or not to grant an order for continuation of contract. This is a rare concept, which means that the claimant
would be entitled to receive their salary and contractual benefits up to the conclusion of the final hearing. Now, normally, final hearings are listed at least a couple of years after the ET1 has been issued, so that could have potentially penalising consequences for the employer.
And the other important thing to note is the employer will not be able to recover any payments made during this period.
However, both the employer and the employee can ask for the continuation order to be revoked where there has been a change of circumstances. For example, where the claimant has been found new employment. And the change of circumstances is governed by provision in section 131 of the Employment Rights Act 1996.
Rebecca Cairney: Okay, so high stake applications then. Yeah, understood. Thank you, Reehan.
And so I suppose just to summarise then, so what would you sort of categorise as the key points when dealing with interim relief and is there anything practically that employers should be thinking about if they do receive an application for interim relief?
Reehan Chaudhry: Yeah, I would advise the starting point for preparation is the Presidential Guidance. It's a short document, but it summarises the position, the law, and the expectations in a nice, tidy document.
Remember to cite the guidance explicitly if you are required to make submissions defending against the granting of an application for interim relief.
If you believe that AI has been used by the claimant, highlight that to the judge, and specifically paragraph 29 of the presidential guidance. Which I'll cite: “Litigants who use AI to assist them have a responsibility to ensure that what is submitted is concise, relevant, and accurate”.
And stress to the judge that the threshold test is very high, and that it is based on a successful preliminary determination on the papers, which should only occur in the rarest of cases, namely where it is blatantly clear and obvious that the dismissal has been caused due to a prohibited reason.
Rebecca Cairney: Okay, brilliant. Thank you, Reehan. And yeah, I suppose just to draw that all together then, what should employers be doing as a first port of call if they do receive this type of application?
Reehan Chaudhry: Essentially, contact Weightmans. For instance, We've dealt with applications like this. We've got extensive practical experience in dealing with both whistleblowing and trade union dismissal cases. We're on standby. This is a very technical area of the law and the consequences for an employer, can be dire in the circumstances if the application is not dealt with in the correct manner.
Rebecca Cairney: Yeah, okay, so time is of the essence and potentially high stake as well.
Reehan Chaudhry: Absolutely.
Rebecca Cairney: Okay, well thank you so much again for that really helpful guidance and summary on interim relief.
And for everybody listening, please do keep an ear out for other important employment law updates by subscribing to the podcast channel Employment Law Insights. For now, if you do need any assistance with anything, whether it's interim relief related or employment law related.
Please either contact myself by email at Rebecca.cairney@weightmans.com or Reehan on reehan.chaudhry@weightmans.com. Thank you again for joining us today, Reehan, that was a really helpful update.
Reehan Chaudhry: My pleasure. Thank you.