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Reinstatement to your job after raising whistleblowing concerns. Interim relief section of the Public Interest Disclosure Act (PIDA) 1998

Interim relief

9 - In sections 128(1)(b) and 129(1) of the 1996 Act (which relate to interim relief) for "or 103" there is substituted ", 103 or 103A".

Explanatory Note

This provides that employees (but not other workers) who are dismissed because they made a protected disclosure are able to claim interim relief. This is a potentially significant provision because, if the tribunal finds that the employee is likely to win at the full hearing, it will order that, pro tem, the employee is re-employed or that his employment is deemed to continue and so he will receive his salary. If, after the full hearing, the tribunal finds in favour of the employee, such an interim order (a) is likely to increase the chances that the tribunal find it is practicable for the employer to comply with any re-employment order made at the full hearing and (b) will strengthen the employee's bargaining position in negotiations.

However the practical value of this provision is somewhat limited in the light of the Court of Appeal's decision in Taplin v. C Shippam Ltd. [1978] IRLR 450 on the application of this section. There the court ruled that to meet the section's test of likelihood, there must be more than a reasonable chance of success. As to the application of this test to a PIDA claim, see the ET decisions in Fernandes v Netcom (interim relief) and Llewelyn v Carmarthenshire NHS Trust.

It is submitted that interim relief claims under PIDA are more likely to succeed in cases involving a s.43C disclosure (to an employer), a s.43E disclosure (to a Minister of the Crown) where the threshold for the applicant is fairly low, or a s.43F disclosure (to a prescribed person) where the evidential burden is slightly higher. Where the case involves a wider disclosure under s.43G and the applicant must demonstrate that the disclosure was reasonable in all the circumstances, it will be more difficult for a tribunal to determine that an applicant is likely to be successful at full hearing. See Parkins v Sodexho where the EAT stressed that at interim relief hearings, tribunals should not prejudge issues which were properly for the full hearing where evidence would be heard and tested.

Interim relief is available if the claim is made within 7 days of the dismissal (s.128(2)); and the tribunal shall determine the application as soon as practicable thereafter (s.128(3)); but giving the employer not less than 7 days notice of the hearing (s.128(4)). The tribunal cannot postpone the hearing of an application for interim relief unless it is satisfied there are exceptional circumstances (s.128(5)).

If at the interim relief hearing (s.129(1)), the tribunal considers it "likely" that at full hearing it will find that the reason or the principal reason for the dismissal was because the employee made a protected disclosure, then a series of provisions are triggered. Briefly, these are that the tribunal first explains its powers (s.129(2)) and asks the employer if he will re-employ the employee, pending the full hearing (s.129(3)). If the employer is willing, then an order is made to that effect: s.129(4)-(6). If the employee does not accept re-engagement (that is a different post, though on terms no less favourable: s.129(3)(b)) then the tribunal decides whether that refusal is reasonable. If it is reasonable then the employee's contract is deemed to continue until the full hearing. If the refusal is not reasonable then no order is made pending full hearing: s.129(8). If, however, the employer fails to attend the hearing for interim relief or says he is unwilling to re-employ the employee (s.129(9)), then the tribunal makes an order under s.130 that the employee's contract is deemed to continue until the full hearing.