In certain limited unfair dismissal claims (such as those for automatic unfair dismissal relating to a protected disclosure) claimants can apply for interim relief. This is an emergency measure which essentially prevents a dismissal from taking effect until the claim has been heard. This is done either by the tribunal ordering the employer to re-engage or reinstate the claimant in the interim period or the tribunal can make a ‘continuation of contract order’ which treats the employee as suspended on full pay until the claim is determined. Because of the significant impact this has, there is an extremely high threshold for claimants to satisfy to be granted this relief and applications are very rarely successful.
New Presidential Guidance responds to key trends
Last month, the Employment Tribunals in Great Britain, felt it necessary to publish new Presidential Guidance in response to two emerging trends. Firstly, there has been a significant rise in applications (rising from 20 per year to around 20 per month) which often also indicate the use of AI. Secondly, there has been an increase in the supporting documentation sent with such applications. The Guidance states that these trends have an adverse effect on the administration of justice, including causing unnecessary delay to other users where other hearings have to be postponed or delayed (given the urgency with which applications for interim relief have to be dealt with).
The full Presidential Guidance can be found here and sets out details of the right, when it applies and the process for these applications. It also provides some general guidance on the test that the Tribunal applies and practical observations it has made relating to these applications.
There has been a significant rise in applications (rising from 20 per year to around 20 per month) which often also indicate the use of AI.
Stringent test and practical pitfalls
As part of this it highlights that the legal test applied – namely whether it is likely that the tribunal will find that the principal reason for the dismissal was the reason relied upon by the claimant (often referred to as the ‘pretty good chance of success’ test) – requires something nearer to certainty rather than a mere probability. Further it cautions against relying on AI (although recognises that this can be used) which it says produces lengthy, complex and irrelevant submissions. It makes clear that it is the responsibility of litigant using this to ensure that what is submitted is ‘concise, relevant and accurate’. Further it points out that reinstatement or re-engagement will be ordered first, where appropriate, and so claimants need to be mindful that there is no guarantee of getting compensation only.
The guidance, helpfully, sets out practical observations from its experience of dealing with these applications, including that those relying on a protected disclosure will need to demonstrate a pretty good chance of success for each element of the legal test. Further, applications are less likely to be successful if the employer is able to identify a good alternative reason for the dismissal, where there are more hurdles for the Claimant in the claim (such as jurisdictional points like employee status or whether a resignation amounts to a dismissal) and where cases are complex due to a large number of disclosures, as in these cases the position will not be as clear and it is more likely evidence will need to be heard at a full hearing.
The Guidance is clearly being issued now to highlight the narrow scope of interim relief and the significant hurdles involved in securing this in an effort to curb these concerning trends and ensure tribunal resources can be used more appropriately. This is even more important with changes being introduced as part of the Employment Rights Act 2025 which will increase the pressures on the Employment Tribunal system.
If you are considering an interim relief application, or facing one as an employer, seek specialist advice early. The process is complex and the threshold remains high, contact our employment team for expert guidance and support.
