What is an interim relief order in relation to whistleblowing?

The coronavirus pandemic has brought with it many changes in Employment Law and it has also seen an increase in whistleblowing from employees, whether that is in relation to furlough leave or employers breaking health and safety rules in making workplaces Covid-19 secure.  Our Employment Law team here explain a particular topic within whistleblowing claims called interim relief, and reviews how employers may start to see an increase in this type of application.

What is interim relief?

Interim relief is a remedy that may be available to employees who are pursuing an unfair dismissal claim based one of the following reasons:

• union membership or activity,
• acting as a representative (for example, a health and safety representative), or
• whistleblowing.

There are two forms of interim relief that a tribunal may grant if the employer is willing:

• re-instatement or re-engagement of the employee on no less favourable terms, or
• an order for continuation of the employee’s employment contract.

Under an order for continuation of employment, the employee continues to receive their full pay and benefits from their employer while not being obligated to do any work.  As the employer, you can not seek to reclaim any salary paid to an employee under a continuation of employment order, even where the employee’s unfair dismissal claim is unsuccessful. For this reason, this type of interim relief can prove very expensive for employers.

What is whistleblowing?

Whistleblowing occurs when a worker reports certain types of wrongdoing that is protected in accordance with section 43B of the Employment Rights Act 1996 (ERA). The employee must reasonably believe that this type of disclosure is in the public’s interest and is based on one of the following, namely that:

• a criminal offence has been committed, is being committed or is likely to be committed,
• a person has failed, is failing or is likely to fail to comply with any legal obligation to which they are  subject,
•  a miscarriage of justice has occurred, is occurring or is likely to occur,
• the health or safety of any individual has been, is being or is likely to be endangered,
•  the environment has been, is being or is likely to be damaged, or
•  information tending to show any matter falling within any one of the preceding paragraphs has been, is being or is likely to be deliberately concealed.

Section 103A of the ERA states that ‘a dismissal will be automatically unfair if the reason or principle reason for dismissal was that the employee made a protected disclosure.’ In such cases, employees may bring a claim for unfair dismissal even if they have less than two years’ service. When an employee files a claim for automatic unfair dismissal, they may be able to seek an interim relief order as well.

When will the Employment Tribunal grant an employee interim relief?

There are several hurdles an employee will have to overcome before a tribunal will grant an interim relief order. First, the employee has seven days from the date their employment terminated to submit the application jointly with the unfair dismissal claim. If the employee was dismissed with notice, they may submit their application during their notice period.  

The tribunal must hold a hearing as ‘soon as practicable’ but must give the employer at least seven days notice of the date and time. The tribunal will grant interim relief if they form the view that the unfair dismissal claim (employment was terminated because they raised a whistleblowing concern) is ‘likely’ or ‘has a pretty good chance’ of being successful at trial. This can be difficult for an employee to establish, who, at this stage, may not have received any disclosure and is unlikely to be afforded the opportunity to cross examine a witness. The tribunal Judge must apply the “likely to succeed test” to the evidence before them, which usually consists of documents, written witness statements, and the employee’s ET1 form.

Interim Relief, whistleblowing and Covid-19

Applications for an interim relief order are quite rare; however they could become quite common due to the global health crisis.

Employees may raise concerns surrounding the risks of contracting Covid-19 from their place of work, which in some circumstances may fall within the definition of a protected disclosure. By way of example, an employee may wish to speak to their employer as they are of the view that the health and safety measures are insufficient, thereby increasing the risk of them contracting Covid-19. If the employee is subsequently dismissed and they take the view that this is linked to the health and safety concern that was raised, they may then be advised to file an application for both an interim relief order and an unfair dismissal claim.  

A less obvious reason that an employee may apply for an interim relief application is in the event that they report their employer for suspected abuse of the furlough pay scheme. The Government have estimated that several billion pounds that have been paid out to employers under the Coronavirus Job Retention Scheme (CJRS) have been claimed by error or fraudulently. Consequently, the Government are encouraging employees to report any suspected fraudulent activity to HMRC. If an employee who reports this is subsequently dismissed, they may be inclined to apply for an interim relief order.

What should an employer do if faced with an application for interim relief?

As you have limited time to respond to such an application, it is important to obtain legal advice as soon as possible. In preparation for the hearing, you should gather as much evidence as is reasonably possible to establish whether there is any merit in the application. If not, then it will be important to focus on the grounds of your defence which should then be submitted to the tribunal. At this stage, you need to raise sufficient doubt that the unfair dismissal claim is “likely” to succeed.

Interim relief orders can be a source of great stress to employers. It is important that employers understand when and how these orders may arise so they can avoid this potentially costly remedy.  If you are facing an unfair dismissal claim or have questions about whistleblowing and interim relief orders, you can contact us today on 023 8071 7717 or email employment@warnergoodman.co.uk to discuss your situation.

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ENDS

This is for information purposes only and is no substitute for, and should not be interpreted as, legal advice.  All content was correct at the time of publishing and we cannot be held responsible for any changes that may invalidate this article.