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Interim relief
[ch 5: pages 127-129]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.
Applications for interim relief are not subject to the Acas Early Conciliation procedure (see Chapter 13).
Interim relief is available for several types of automatically unfair dismissal, including dismissal for:
• acting as a health and safety rep;
• carrying out lawful trade union activities; and
• whistleblowing.
Where the claim relates to trade union membership, duties or activities, 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 claimant is likely to succeed in proving that the reason for dismissal was that they were engaged in lawful trade union activities. Interim relief should be granted where the claim has a “pretty good chance” (more than a 51% probability) of success (Taplin v C Shippam Limited [1978] ICR 1068) or is a “potential winner” (Derby Daily Telegraph v Foss [1991] UKEAT/631/91).
Interim relief applications are decided in a preliminary hearing, usually without oral evidence or cross-examination. Evidence of obvious differences between the employer’s treatment of the union rep and its treatment of comparable workers can be very important in claims for interim relief. Evidence of overt hostility towards the union is also useful, as it helps to suggest that the most likely explanation for the different treatment is a 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 Chako’s claim had a “pretty good chance of success”. He reached this conclusion in particular because of:
• the timing of his dismissal — soon after the employer discovered Chako’s activities in support of recognition:
• the “startling” difference between the employer’s slow response to grievances Chako had submitted and the speed with which it acted to dismiss him; and
• the difference between the employer’s response to past accusations of bullying by other employees and its swift dismissal of Chako on this occasion.
London City Airport Limited v Chacko [2013] UKEAT/0013/13/LA
The effect of an interim relief order is to continue the contract of employment until the full claim has been heard. This means the employee’s wages and other benefits continue to be paid by the employer until the eventual tribunal decision or any settlement.
In 2011, the RMT won an application for interim relief for 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. 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.
Sacked Grangemouth convenor wins interim relief order
In March 2014, an Edinburgh employment tribunal 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 was likely to win his unfair dismissal claim and ordered Ineos to pay his wages until the hearing.
The convenor, 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”.