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Interim relief
[ch 5: pages 173-174]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 13).
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.
A tribunal can make an order for interim relief if it considers that the claimant is likely to prove that they were dismissed for engaging in lawful trade union activities. Interim relief should be granted where the claim has a “pretty good chance” of success (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 in treatment of the union rep and of comparable co-workers can be very important to this type of claim. Evidence of overt hostility to 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
An interim relief order can be for reinstatement, re-engagement, or (more likely) for the employer to continue paying the claimant’s wages and other benefits under the employment contract until the full 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 he won 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.