Interim relief

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.