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Interim relief
[ch 5: pages 166-167]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 Acas Early Conciliation (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;
• acting as a trustee of an occupational pension scheme;
• acting as a rep for collective consultation over redundancies or TUPE; or
• whistleblowing (see Chapter 13).
A claim for interim relief that relates to union membership, duties or activities must be supported by a written certificate from the union. An interim relief order should be made if 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).
Applications are decided in a preliminary hearing. The tribunal can consider oral and documentary evidence. Because the application is supposed to be decided quickly, a tribunal will not expect to be asked to consider a large volume of evidence. The more complicated the evidence, the less likely the tribunal is to make an interim relief order (see Raja v Secretary of State for Justice 2010] UKEAT 0364/09/1502).
Evidence of obvious differences between the treatment of the union rep and that of 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 suggest that the different treatment is likely to be due to the claimant’s 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 reinstatement, even after winning at the final hearing. As this case shows, well organised and strong trade unions are usually the only way to protect victimised reps. Legal rights are not enough.