Interim relief

If an employee is dismissed on grounds of their union activities they are entitled to claim interim relief at an employment tribunal. Interim relief is a remedy available in cases of unfair dismissal that are automatically unfair on grounds of trade union activities or certain health and safety activities. The application must be supported by the union in the form of a written certificate. 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 is a summary hearing that takes place usually without cross-examination of witnesses. It involves the judge taking a view of the evidence and determining that the claim has a “pretty good chance of success” (Taplin v C Shippam Limited [1978] ICR 1068) or a “potential winner” (Derby Daily Telegraph v Foss [1991] UKEAT/631/91).

In London City Airport Limited v Chacko ([2013] UKEAT/0013/13/LA), three factors contributed to the Judge’s decision that the claimant was likely to succeed in demonstrating that his dismissal related to trade union activities:

• timing — the fact that Mr Chacko, an active union rep, was dismissed for gross misconduct (bullying) within days of the employer finding out that he would be involved in balloting for recognition, in circumstances where the employer was known to be “unequivocally hostile” to this;

• the “startling” difference between the employer’s slow response to Mr Chacko’s own grievances and the speed with which it dealt with his disciplinary investigation and procedures leading to dismissal; and

• consistency — the employer’s failure to discipline other employees against whom similar serious bullying allegations had been made in the past.

The effect of an interim relief order is to continue the contract of employment until the full claim has been heard, which means the employee will continue to be paid by the employer. The employee and union must act quickly — a claim for interim relief must be brought within seven days of the effective date of termination.

For another recent example see the unreported case of Eamonn Lynch, who was successfully granted interim relief against his employer, London Underground, in 2011, with the support of the RMT.

Disciplinary action against union representatives should not be dealt with under the organisation’s normal disciplinary procedure but should be covered by a special procedure. Acas advises that: “Disciplinary action against a trade union official can lead to a serious dispute if it is seen as an attack on the union’s functions”. For this reason, while normal disciplinary standards should apply, no action beyond an oral warning should be taken until the case is discussed with a senior trade union representative or full-time official.