LRD guides and handbook June 2014

Law at Work 2014

Chapter 5

Interim relief

[ch 5: pages 138-139]

An employee dismissed on grounds of their union activities may be able to claim interim relief at an employment tribunal. The employee and union must act quickly. A claim for interim relief must be brought within seven days of the effective date of termination.

Reps should note that applications for interim relief are not subject to the Acas early conciliation procedure introduced from 6 April 2014 (see Chapter 1).

Interim relief is available for several categories of automatically unfair dismissal, including dismissal for acting as a health and safety rep, carrying out lawful trade union activities and whistleblowing. The application must be supported by a written certificate from the union. A tribunal can make an order for interim relief if it considers that the employee is likely to succeed in their unfair dismissal claim.

Interim relief applications are decided following a preliminary hearing, which nearly always takes place without oral evidence or cross-examination. The judge must decide whether, based on the available evidence, the claim has a “pretty good chance of success” (Taplin v C Shippam Limited [1978] ICR 1068) or is a “potential winner” (Derby Daily Telegraph v Foss [1991] UKEAT/631/91).

Evidence of differences between the employer’s treatment of the union rep and its behaviour towards other comparable employees can be very important in claims for interim relief, because it helps to suggest that the only explanation for different treatment is the claimant’s trade union involvement. London City Airport Limited v Chacko [2013] UKEAT/0013/13/LA, is a good example. In this case, Mr Chacko, a union rep, was dismissed for alleged gross misconduct (bullying) within days of his employer discovering that he was organising a ballot for recognition, to which the employer was “unequivocally hostile”. The judge awarded interim relief on the basis that Chako’s claim had a “pretty good chance of success” because of:

• the timing of his dismissal:

• the “startling” difference between the employer’s slow response to grievances Chako had submitted and the speed with which it moved to dismiss him; and

• the difference between the employer’s response to past accusations of bullying by other employees and its swift dismissal of Mr Chako.

The effect of an interim relief order is to continue the contract of employment until the full claim has been heard. This means that the employee’s wages and other benefits will continue to be paid by the employer until the eventual tribunal decision or any settlement.

In 2011, the RMT succeeded in an application for interim relief for its member, dismissed health and safety rep and London Underground train driver Eamonn Lynch. However, it took the threat of industrial action to secure Lynch’s eventual reinstatement.

Sacked Grangemouth convenor wins interim relief order

In March 2014, an employment tribunal in Edinburgh made an interim relief order in the case of Mark Lyon, a union convenor sacked by Grangemouth refinery owners Ineos. The tribunal ruled that Lyon is likely to win his unfair dismissal claim when it goes to a full tribunal hearing and ordered Ineos to pay his wages until then.

Unite described the ruling as a “shot in the arm for workers across the country [sending a] clear message that they can be a member of a trade union and represent other workers without fear of victimisation”.

The covenor, who had 25 years of service, was sacked in his absence for allegedly failing to stop the union commenting on media reports about fear of job losses at the plant. According to press reports of the tribunal hearing for the interim relief award, the tribunal judge concluded that having “reviewed all material and listened carefully, … there is nothing to satisfy me that [Lyons] has crossed the line. In my view he has a pretty good chance of success”.