Interim relief: top tips for defending an application

Applications for interim relief have soared as of late and one explanation is the use of AI platforms. With the cost of living continuing to rise and the length of listing a hearing disappearing into the far future, it is perhaps unsurprising that claimants are using interim relief applications as an opportunity for what they believe may be a quick payout within a matter of weeks.

New Presidential Guidance has just been issued highlighting amongst other matters, the need for practitioners to be prepared for these types of applications. However misguided an interim relief application may be, Respondents have to be quick to respond. Here is our breakdown of the key things you need to know:

Check whether the claimant has the right to bring the application 

• Double and triple check the gateway requirements. Section 128(1) ERA requires that the claimant has brought a claim for unfair dismissal, as long as they are asserting that the reason (or principal reason) for the dismissal falls under one of the specified categories. 
• If the reason for the dismissal was redundancy, interim relief is not available (McConnell and anor v Bombardier Aerospace/Short Brothers plc (No.2) 2009 IRLR 201, NICA). 
• Claims under the Equality Act are excluded (Steer v Stormsure Ltd 2021 ICR 807, EAT). 
• The statutory key for interim relief is not discretionary. It is fundamental to giving a Claimant standing.  
• If an employee is claiming to have been dismissed because of actual or proposed union membership or participation in union activities, they must also produce a certificate from an authorised union official (s161(3) TULR(C)A). 
• Note: if employment status is in dispute, that does not mean the Claimant is precluded from the right to bring an application (Simply Smile Manor House Ltd and ors v Ter-Berg 2020 ICR 570, EAT). Rather, this aspect will fall under the ‘likely to succeed’ test, discussed below. 
• There is no need to go through the mandatory conciliation process if bringing a claim for interim relief (Reg 3(1)(d) Employment Tribunals (Early Conciliation: Exemptions and Rules of Procedure) Regulations 2014 SI 2014/254). 

Check the time

• The time limit for interim relief applications is 7 days from the effective date of termination. The Tribunal has no discretion to extend this time limit regardless of the reason. 
• If the claimant has made an application for interim relief after bringing a claim for any other matter which is latterly dismissed and then decides to make an application for interim relief, the application will fail. Claimants must have brought a new claim for unfair dismissal, or applied to amend to include a claim for unfair dismissal, prior to making such an application. 
• The Tribunal is to determine the issue as soon as is practicable (s128(3) ERA/s162(1) TULR(C)A) and it must give the employer at least seven days’ notice of the hearing, along with a copy of the application and any accompanying certificate (s128(4)/s162(2)). 
• A tribunal cannot postpone a hearing on interim relief unless there are ‘special circumstances’ (s128(5)/s162(4)). 

Check the test

• The test is whether it is likely that the claimant will succeed at a full hearing of the unfair dismissal complaint (s129(1) ERA/S.163(1) TULR(C)A). What that phrase means has been the subject of various cases, some of which give slightly different interpretations. 
• Some phrases can be used to assist, such as ‘pretty good chance of success’ (Taplin v C Shippam Ltd 1978 ICR 1068, EAT), ‘something nearer to certainty than mere probability’ (Ministry of Justice v Sarfraz 2011 IRLR 562, EAT). 
• What it does not mean is: ‘real possibility’ (Taplin), ‘reasonable prospect’ (Taplin), or ‘more likely than not’ (Sarfraz). A percentage chance is also not considered an appropriate test (Sarfraz). 
• It is also important to remember that the test applies to each and all elements of the claim. 

Top tips and tactics 

Respondents have a number of tricky tactical decisions to make when defending interim relief applications. Is it better to actively defend the merits or leave it up to the claimant to make their application? What evidence can and should be submitted if any?

There has been a sense of alarm in defending interim relief applications, and a rush to collate all the evidence including draft witness statements as part of a response. However, this can add complexity and allow claimants to see your hand at an early stage.

Remember, the Tribunal is only to do an ‘expeditious summary assessment’ (London City Airport Ltd v Chacko 2013 IRLR 610, EAT) and our approach should be tailored accordingly:

• A Grounds of Resistance is always helpful whether complete or in draft. If it is a draft, then be clear that is the case e.g. with the appropriate watermark. If there is insufficient time, the writers would instead recommend a short position statement (akin to those used in Judicial Mediation) which sets of the short form response to the legal claims.  
• The bundle should be limited to a small number of core documents. Prioritise those which are a easier to challenge any aspect of the Claimant’s case i.e. disprove a detriment, or identify a central dispute of fact. Avoid providing documents which require contextualising which would come later with witness statements. Parties should be able to direct the Judge to the specific parts if the evidence which are relevant to the application (Raja v Secretary of State for Justice EAT 0364/09). particularly when there is a large amount of documentation (which the writers consider should be avoided at this early stage in any event). 

• Full and complete witness statements would only be recommended in the most extreme cases. Remember: if there is a dispute of fact that witnesses need to resolve, it is highly unlikely that the interim relief application will succeed. Practitioners may find it easier and a more appropriate use of time and resources to provide a short form draft statement focussing on one or two key issues e.g. a witnesses lack of knowledge of any alleged protected disclosures. Be clear that any witness statements used in defence of the application are indeed for that purpose as opposed to representing the totality of the evidence to be given a final hearing – either by way of opening paragraph or a watermark. 
• Skeleton arguments are always useful, particularly where claimants are unrepresented. It is important that any such document identifies the legal test clearly and succinctly as well as addressing each element of the legal tests for each claim and only spends one or two paragraphs dispensing with each. 
• If you are applying for costs, put the claimant and Tribunal on notice so that the issue has a chance of being dealt with at the same hearing. A threat of such is unlikely to deter a litigant in person, but it is an option to consider particularly when a claimant has relevant knowledge or documents, which would make it plain they were not ‘likely’ to succeed.