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Interim relief
[ch 5: pages 157-158]An employee dismissed because of 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 (see Chapter 10).
Applications for interim relief are not subject to the Acas Early Conciliation procedure (see Chapter 14).
Interim relief is available for several types of automatically unfair dismissal, including for:
• acting as a health and safety rep;
• carrying out lawful trade union activities; and
• whistleblowing.
Where a claim relates to trade union membership, duties or activities, the application must be supported by a written certificate from the union.
An interim relief order should be made when a tribunal concludes that the claimant has a “pretty good chance” of proving they were dismissed for engaging in lawful trade union activities (Taplin v C Shippam Limited [1978] ICR 1068, Raja v Secretary of State for Justice [2010] UKEAT/0364/09/1502) or is a “potential winner” (Derby Daily Telegraph v Foss [1991] UKEAT/631/91).
Interim relief applications are decided in a preliminary hearing. The tribunal can consider oral and documentary evidence. Evidence of obvious differences between the treatment of the union rep and that of comparable co-workers can be very important, as can the timing of the employer’s actions. Evidence of overt hostility to the union is also useful, as it helps to build a case that the different treatment is likely to be due to the claimant’s trade union involvement. Here is a good example:
Mr Chacko, a union rep, was dismissed for alleged 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, accepting that Chacko’s claim had a “pretty good chance of success”. He reached this conclusion in particular because of factors such as the timing of the dismissal (soon after the discovery of his recognition activities), the “startling” difference between the employer’s slow response to grievances Chacko had submitted and the speed with which it acted to dismiss him; and the contrast between the employer’s response to past accusations of bullying by other employees and its swift dismissal of Chacko.
London City Airport Limited v Chacko [2013] UKEAT/0013/13/LA
An interim relief order can be for reinstatement, re-engagement, or (more likely), the continued payment of wages until the claim has been heard or the dispute is settled (similar to a paid suspension).
In 2011, the RMT won an application for interim relief for dismissed health and safety rep and London Underground train driver Eamonn Lynch. But it took the threat of industrial action to secure Lynch’s eventual reinstatement, even after winning at the final hearing. As Lynch’s case shows, well organised and strong trade unions are the only way of protecting victimised reps. Legal rights on their own are not the answer.