Interim relief: who said you had to wait four years for a win in the Employment Tribunal?

The Presidents of Employment Tribunals in England and Wales and in Scotland have today issued new joint presidential guidance on applications for interim relief.

It has been known for some time by practitioners that interim relief applications were on the rise, but this new guidance suggests the increase is more significant than had been previously understood. Penningtons Manches Cooper’s own analysis of every decision published on the Employment Tribunal dating back to February 2017 shows the number of published interim relief decisions has roughly trebled since 2023. However, these figures only include published decisions, and do not take into account cases settled before an interim relief application reaches a hearing.

The internal figures available to the Employment Tribunal referred to in the presidential guidance suggest that the published data massively understates the true increase. The guidance states that tribunal offices are receiving the same number of applications they previously had in a year, in as little as a month.

What was once a little-used corner of Employment Tribunal procedure is suddenly very busy. Employers, many of whom will never have faced an interim relief application, should understand what they are facing.

What is interim relief?

Interim relief is an emergency remedy available alongside a small category of automatically unfair dismissal claims, under sections 128 to 132 of the Employment Rights Act 1996 and sections 161 to 166 of the Trade Union and Labour Relations (Consolidation) Act 1992. A dismissed employee who claims they were dismissed for whistleblowing, trade union membership or activities, or certain health and safety, employee representative, pension trustee, or blacklisting reasons may apply to the tribunal within seven days of dismissal. There is no requirement to go through the Acas early conciliation process first.

The tribunal must list the application ‘as soon as practicable’, giving the employer as little as seven days’ notice of the hearing (although, in practice, tribunals are taking significantly longer to list). The hearing itself is summary in nature, often with no oral evidence, just a broad assessment of the papers. The claimant must show that they are ‘likely’ to succeed at the final hearing, which case law has interpreted as a ‘pretty good chance’, a deliberately higher bar than the ordinary balance of probabilities.

If the application succeeds, the ramifications for employers are serious. The tribunal first invites the employer to reinstate or re-engage the employee. If the employer declines, as most do, the tribunal orders the continuation of the contract of employment. The employee is paid their full salary and benefits, without working, until the claim is finally determined or settled. Critically, those payments are not recoverable. Even if the employer goes on to win comprehensively at the final hearing, there is no recourse to recover these funds. Given that we are seeing hearings being listed in 2030, that is a long time to pay someone for nothing.

What it was supposed to do

Interim relief is a product of industrial relations in the 1970s. Introduced by the Employment Protection Act 1975, its purpose was to stop employers effectively preventing unions from organising campaigns by summarily dismissing the activists leading them. A dismissed activist might win compensation 18 months later but, by then, the organising drive would be over. The remedy was designed to neutralise a tactical dismissal by keeping the activist on the books while the case was heard.

The remedy acquired its modern significance when the Public Interest Disclosure Act 1998 added whistleblowing dismissals to the list of qualifying claims. For two decades after that, it remained relatively obscure: applications were rare and successful applications rarer still.

Why is it being used now?

Two drivers explain the surge, and neither is going away.

The first is the tribunal backlog itself. With final hearings in some regions listed as many as four years from the filing of the claim, the value of an order continuing a claimant’s salary until determination has created a powerful incentive to apply, and some claimants may even think they cannot afford not to apply given the delay until a final hearing.

The second, which can only be inferred from practice, is the rise in the use of artificial intelligence providing legal ‘advice’ to litigants in person, often with little attention paid to the merits of making such an application. This is also due to the vagueness of the phrases ‘likely’ or ‘pretty good chance of’ success, which is misleading as to the actual difficulty of obtaining these orders in the tribunal: the bar is higher than it seems. The new presidential guidance even acknowledges that many of these claims suggest the use of artificial intelligence by the litigant.

The risk to employers

An interim relief application can compress what would normally be months or years of litigation preparation into days: instructing solicitors and counsel, assembling documents, drafting witness evidence, and preparing a coherent account of the dismissal decision, all on as little as seven days’ notice, and with none of the breathing space usually provided by Acas conciliation. An employer that treats the notice as routine correspondence and responds late, or thinly, hands the tribunal an uncontested or sub-par narrative as it is forming a view on whether the claim is ‘likely’ to succeed.

A granted application in circumstances where reinstatement is resisted means paying full salary and benefits, including pension contributions, to someone who no longer works for you, for as long as the claim takes to resolve. Viewed in the light of current listing times, an order in favour of an employee can comfortably exceed two years’ remuneration, none of it recoverable.

A granted application reverses the current economics of settlement overnight. While the delays in the Employment Tribunal have emboldened some employers in settlement discussions, if interim relief is granted, the claimant litigates on full pay with no incentive to hurry, while the employer funds both sides of the delay. Even a refused application is not cost-free for the employer, because the exercise forces the early preparation of the defence and consumes significant management time and legal spend in the span of weeks.

A silver lining for employers

The comfort for employers is that the threshold remains genuinely high: the ‘pretty good chance’ test defeats most applications. As the new presidential guidance acknowledges, the claimant needs to show they have a pretty good chance of establishing, in whistleblowing cases, that they made a protected disclosure and that they have a pretty good chance of establishing that was the reason for dismissal.

Where there is a credible documented alternative reason for dismissal, the guidance indicates it will be difficult for a claimant to overcome this without evidence it was not the real reason. If an employer can introduce other credible hurdles, such as questions relating to employment status, the more difficult it will be for a claimant to make out their claim.

The new guidance is to be welcomed but we will have to wait and see whether it presents a significant deterrent to former employees making interim relief applications: that may well turn on how AI alters, if it does alter, its ‘advice’.