Should employers be worried by the sharp rise in claims for interim relief? Perhaps, because successful applications can be incredibly costly for employers so it is a concern. A reminder – this is an application, not unlike an interim injunction application is civil courts, which sees the claimant reinstated or re-engaged or, more usually, their contract is allowed to continue to run, on full pay and benefits, until the case comes on for hearing in the tribunal. Given the enormous backlog of cases at the moment that could be well over a year, hence why it could be so expensive. As the law stands, interim relief is only available in a few types of claims - whistleblowing cases and certain other types of claim - but they can be a very effective weapon for claimants. Employees can effectively hang on to full pay and benefits for well over a year, possibly two. We notice this has been noticed by People Management which asks 'why are interim relief applications increasing in tribunals' and looks at the implications for businesses. They point to how the number of tribunal decisions published in 2019 which mention interim relief is 41 per cent higher than in the previous year, and its 'a staggering 63 per cent' higher on the number published in 2017. Things could get worse. At some point in 2021 the Court of Appeal will be hearing the case of Steer v Stormsure Limited which could see interim relief introduced as a new remedy in discrimination claims. This is an appeal from the EAT which, shortly before Christmas, ruled that it was a breach of the European Convention on Human Rights for the remedy to be available to a dismissed whistleblower but not to someone dismissed for discriminatory reasons. So what do we make of all this? The articles out there certainly paint a bleak picture but how worried should employers be? To answer that I called the Head of our Advocacy Unit, Sarah Ashberry:
Sarah Ashberry: "I would want to reassure employers really because I suspect the large majority of interim relief applications are actually doomed to failure and the reason is that it's an incredibly high test for the claimant to meet. They have to demonstrate to the employment judge's satisfaction that they are pretty likely to win their case and it's not enough for them to show that they are more likely than not. So they need to get the employment judge to a position, not just that they're 51% likely to win, but really a much higher standard than that and that is really very difficult for claimants."
Joe Glavina: "What do you make of this sharp rise in applications that we've seen during lockdown? Curious isn't it?"
Sarah Ashberry: "The rise in applications is really fascinating actually and I think the reasons for it are basically to do with the COVID crisis, because if you think back to last March, really every workplace in the country was impacted, quite suddenly, and quite alarmingly, I think, by this by this crisis and whereas there are certain sectors like rail and construction where health and safety issues have always been terrifically important there are other sectors where health and safety issues haven't until now really been a sort of day to day issue of concern in the workplace but suddenly it was, and then there were a lot of changes that came in very, very quickly and then, sadly, in 2020, a lot of people lost their job. So I think these reasons have combined to cause a bit of a boom and interim relief. I mean, lots of people probably have never heard of interim relief, or never had to deal with it. I've dealt with two cases now in the last six months and I think, anecdotally, all employment lawyers have noticed a rise in this in this type of case. It's really bad news for employers, to be honest, because even though, as I said earlier, I thought that a lot of these efforts ultimately lacked merit, you are pitched into a very intense period of case preparation where you literally have days to pull together evidence and witness statements in time for the tribunal hearing. So unfortunately, that way of working tends to be expensive for employers. So I think the response to this is to be confident in using, essentially, threats of making costs applications because it simply isn't fair for an employer to have to face that expense of this enormous amount of case preparation on a claim which, ultimately, is going to fail and the claimant needs to be on risk of that."
Joe Glavina: "The Steer case is going to be heard by the Court of Appeal at some point in 2021 we think. That could see interim relief brought in as a new remedy in discrimination claims which is an alarming thought."
Sarah Ashberry: "It would it would open the floodgates and it would be a bit disastrous, frankly, because I can imagine quite a lot of people wanting to try that on, albeit it's very hard to test to meet. At the moment the good thing about interim relief, so far as employers are concerned, is that it's incredibly restricted in terms of the categories of claim and the categories of claimants that it could apply to and at the moment, really, it's limited for public policy reasons for people, for example, who are trade union representatives, or health and safety representatives, or who can demonstrate that they've blown the whistle."
Joe Glavina: "What's your hunch Sarah? Do you think the Court of Appeal will say interim relief should be available in discrimination cases because that would be a huge decision?"
Sarah Ashberry: "Well, I really hope not because our tribunal system is clogged up enough already. If it had a sudden influx of additional interim relief cases from discrimination claimants then I think the whole thing would grind to a halt quite honestly."
The Steer v Stormsure case is due to be heard by the Court of Appeal by 13 December so we will be watching that closely for you. You can see what else will be happening in 2021 from our Employment Horizon Scanning article available now on the Outlaw website.