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Interim Relief

INTERIM RELIEF

What is Interim Relief?

Interim Relief is an order by the Employment Tribunal that preserves your employment (at least so far as pay is concerned) until after the tribunal has decided your claim for unfair dismissal. It is only available to employees who have just been dismissed and can show that they are “likely” to win their whistleblowing claim. There is no two-year qualification period of employment like for ordinary unfair dismissal rights. It is difficult to win but very valuable as the substantive hearing for your case is probably going to take place more than a year after the dismissal.

If you think you have good evidence that shows that you were dismissed for whistleblowing, you should definitely think about applying for Interim Relief.

How do I apply for Interim Relief?

STEP 1: Consider whether you need to start ACAS Early Conciliation.

You do not need to start the ACAS Early Conciliation process if your claim is only about dismissal and includes an application for Interim Relief.

However, in most cases, your claim will also include a detriment claim for which you will need to have started ACAS Early Conciliation. You can do this by contacting ACAS here.

If you have a detriment claim in addition to your unfair dismissal claim, you need to call ACAS and tell them that you do not want to conciliate in order to get the non-conciliation number to put on your ET1 form. In such cases, at section 2.3 of the ET1 form (“Do you have an ACAS early conciliation number?”) we suggest to tick both “Yes” (and give it in the following box) and tick “No” and then tick “My claim consists only of a complaint of unfair dismissal which contains an application for Interim Relief”.

For more information about dismissal and detriment claims, see here and here.

STEP 2: Submit an ET1 form within seven days of the effective date of your dismissal and clearly state on the form that you are applying for Interim Relief.

The seven day deadline is strict and the tribunal will not be able to extend it, even if you have very good reasons.

In section 8 of the ET1 form, tick both “I was unfairly dismissed” and “I am making another type of claim which the ET can deal with”, and write in the box “Interim Relief: I am claiming unfair dismissal by reason of whistleblowing and I am applying for Interim Relief pursuant to section 128 of the Employment Rights Act 1996 (ERA). For the reasons set out in the Details of Claim, I submit that it is likely that the Tribunal will, in determining this complaint under section 103A ERA, find that the (principal) reason for dismissal was [one or more of] the protected disclosure[s]. Accordingly, unless the Respondent[s] confirm[s] that [it/they] [is/are] willing to reinstate me, I am entitled to an order for the continuation of my contract of employment pursuant to section 129(9) ERA”.

You should clearly set out in the ET1 form: (i) the concern you raised with your employer, (ii) when you raised it (date and time), (iii) how you raised it (verbally or in writing), (iv) your employer’s reaction, and (v) how you satisfy the necessary elements of Interim Relief (this is explained below in “What does ‘likely’ to succeed mean?”).

STEP 3: To make it very clear to the tribunal that you are applying for Interim Relief, we recommend you also write a separate letter explaining why you are applying for Interim Relief and submit this at the same time as your ET1 form. You can do this by emailing the tribunal (see here for details) and use the same text that you will have put on the ET1 form.

STEP 4: It will also be worth telephoning the Employment Tribunal office itself to let them know that you have submitted an application for Interim Relief. It is also good practice to send your application and the claim form to the respondent. Although you will give them more time to prepare, they cannot later argue that they have not had enough time to consider your arguments.

Bringing legal action?

Click here to see what you should do if you have been dismissed, made redundant or forced to resign due to whistleblowing.

What does "likely" to win mean?

“Likely” means you have a “pretty good” chance of succeeding at the final hearing.

The tribunal will have to decide whether it looks as if the principal reason for dismissal was whistleblowing based on a summary assessment of the material before it.

The “likely to succeed” test applies to all of the elements necessary to establish your claim. So you have to prove that:

  • you were an employee
  • you were dismissed
  • you raised concerns tending to show one of the particular types of wrongdoing set out by the law (you can read about what these are here)
  • you raised the concerns using the proper channels (this can be a tricky area to navigate so find out more about how to raise your concerns here and here)
  • you believed this disclosure was in the public interest and that it was reasonable for you to believe so (find out about the public interest test here)
  • this disclosure was the principal reason for your dismissal

This will very much depend on whether the concerns you raised were whistleblowing concerns in law and whether you raised concerns in the right way. It may be possible to win an Interim Relief claim where you raised patient safety concerns to your employer – but highly unlikely when you raised concerns about your annual leave to the media. You can click here to see a more detailed explanation of the whistleblowing laws.

In practice, it means you need pretty good documentary evidence (in most cases, a paper trail). If you are thinking about relying on cross-examining your employer to win your case, Interim Relief is probably not for you: for a start, you probably won’t get the chance to cross-examine anyone until the final hearing.

What is whistleblowing?

Click here to find out more about whistleblowing and how to raise a concern you have.

What happens once I've made the application?

The tribunal should schedule a hearing and determine the application as soon as practicable.

The tribunal should give the employer at least seven days’ notice of the hearing so it can respond to the application. The employer might not submit its formal case (the ET3 form) at the Interim Relief stage – this is not uncommon.

The tribunal cannot postpone the hearing of an application for Interim Relief unless it is satisfied that there are special circumstances.

Do start preparing for the hearing as soon as possible, especially the bundle of documents you will want to use at the hearing, e.g. evidence of the allegation, your contract of employment, and any relevant company policies and procedures. You will probably also need to write a witness statement. If you have colleagues who are happy to give evidence for you, have them write a witness statement too.

If you are looking for work while awaiting the hearing, we recommend keeping a complete record of everything you do, from reading and searching for vacancy notices, to job applications. All of these costs are potentially recoverable.

In the event you decide not to proceed and want to withdraw your claim, never do so without agreeing costs with your employer first.

What happens if I win?

If you win, the tribunal will order that you must be re-instated (brought back into your former job) or re-engaged (brought back into a different job on comparable terms).

In many cases the employer will be unwilling to re-hire you, so the tribunal will make an order that you must continue to be paid your salary and other benefits until the final hearing takes place.

If the employer is willing to re-hire you, but you refuse, you may lose your entitlement to be paid in this period. In order for the tribunal to order the continuation of pay and other benefits, your refusal must be reasonable. If your refusal is unreasonable, the tribunal will not make any order.

If both employer and employee are willing to work together again, the tribunal will make an order to bring the employee back to work.

Winning an Interim Relief order will also put you in a very good position to negotiate a settlement with your employer: it sends a strong message that the judge thinks your case is a really good one.

Bear in mind that even if you win at this stage, you could still lose at the final hearing. However, if you do lose at the final hearing, you would not normally have to pay back any Interim Relief award.

Need advice on this?

You can contact the Protect Advice Line for advice on interim relief and whistleblowing.

Is all lost if I lose the Interim Relief?

Not at all! There are cases lost at the Interim Relief stage but won at the final hearing. The judge may have considered, for instance, that you had a ‘respectable’ chance of success but not quite strong enough to make it to the ‘pretty good’ level required.

Even if you lost, it may have been useful in undermining the employer’s faith in their case. You may have sown some seeds of doubt about the strength of their arguments – and it may induce them to start negotiating with you.

What happens if I win the Interim Relief but lose at the final hearing?

Payments made under Interim Relief are non-recoverable – you do not have to re-pay the money if you lose at the final hearing. Even if you ultimately lose your claim, you will still have been paid in the meantime (often for months, if not years) and you will not have to pay this money back.

Top Tips

  • Start early! If you suspect you are going to be dismissed for whistleblowing, get urgent advice from a lawyer, trade union, or Protect and start organising the evidence you will need. Even more so once you are indeed dismissed! You can contact Protect for advice here.
  • There are pros and cons. If you go for Interim Relief, you are in practice laying all your cards on the table. Your employer will get lots of information before they even have to reply to your full claim. It may also distract everyone from settlement discussions and, if you are paying for legal advice, will significantly add to your costs.
  • Once you are dismissed, things go very quickly! Remember you must submit your ET1 form within seven days from the date of the effective termination of your contract.
  • In your ET1 form, you should explain only the relevant factual matters that give rise to your claim in a clear and succinct way. You should not give a detailed narrative explanation of everything that’s happened to you. You should address all the key elements of the claim and show that you are “likely” to win on all of them. Try to make your case as obvious as you can to the judge.