Question: When does a one-day hearing throw your life entirely into chaos?   Answer: When it is an interim relief hearing

As a specialist employment law practice, we always have some employment tribunal litigation on the go at Torque Law, mainly defending claims on behalf of our employer clients although we do occasionally represent claimants too.  We enjoy it, and our clients tell us that we’re good at it!

Very many of our cases are complex, often involving sensitive allegations of discrimination or whistleblowing.  The cases tend to be multi-day, being listed for anything from 3 to 5 days, and will normally run (start to finish) over a 12-18 month window.

A Tribunal claim lasting one-day is a rarity these days.  A one-day case will normally concern an alleged unlawful deduction from wages, or unpaid holiday pay or an isolated incident of discriminatory treatment where the employment is ongoing.  These cases tend to progress through the Tribunal system more quickly but, due to the current backlog, can still take up to 6 months to be heard, giving plenty of time for all parties, and their advisers, to be fully prepared.

Just before Christmas, one of our newer clients instructed us to defend an interim relief application brought by a former senior employee.  A first for Torque Law, and me – you’re never too old or, in my case, wizened, to learn and roll your sleeves up. Bring it on, I thought! It’s only a one-day hearing. How naïve I was.

What is an application for interim relief?

Firstly, it’s probably worth me explaining what an application for interim relief is.  It is an application that is (and can only be) brought by a former employee who has been dismissed in circumstances where the dismissal is said to be automatically unfair (e.g. for whistle-blowing; asserting trade union rights).  The relief or remedy they are seeking is to be reinstated by their employer or for the Tribunal to award a continuation order that they be paid their normal salary until such time as their main case can be heard properly by an Employment Tribunal.

Interim relief hearings will be listed quickly, and far quicker than any normal hearing. Even the busiest Tribunal centres will usually be able to list an interim relief hearing in 2-3 weeks of the application being received.

Tribunals hearing these sorts of application, have to conduct a summary assessment of the case, based largely just on the papers, in a short period of time, to establish whether the Claimant (the former employee) is likely to succeed in their claim at the main hearing.  As the case law puts it: the Judge must form an impressionistic view of the evidence and decide whether the Claimant is more likely than not to win on all counts.

In order to succeed, the Claimant must reach a very high bar evidentially, and the vast majority of claimants will come up short. But, for those who meet that high evidential bar, the rewards are significant: they will continue to be entitled to be paid their normal salary until their claim is fully determined at the main hearing.  Employers need to know that even if the Claimant goes on to lose their claim when all the evidence is considered at the main hearing, the individual will not be under any obligation to repay any of the salary payments they’ve received in the interim.  The stakes are high: any money paid out by the employer cannot be recouped.

If faced with an application for interim relief what should we do?

1. An ever-present feature of any interim relief application / hearing is speed. As explained, the hearing will be listed within a matter of weeks.  Time will be of the essence in terms of collating documentation and preparing any witness evidence. It is important, therefore, that you engage a specialist employment solicitor and Counsel without delay.  A tribunal will not entertain an application for a postponement, no matter how inconvenient the date may be.

2. Focus on the legal issues that the Judge will need to determine, and only those, when preparing. The Claimant’s case will be clear from the Claim Form. From a Respondent’s perspective, it will be important to demonstrate that there is some evidence to challenge or counter the Claimant’s assertions about the reason(s) for their dismissal. For example, if the Claimant asserts that they are a whistle-blower and this was the reason they were dismissed, but you say there were dismissed for genuine redundancy reasons, you will want to include in the bundle the key documents that pre-date the dismissal and which tend to show that the Claimant was redundant, and that this was the real reason for their dismissal.

3. Witness evidence. Interim relief hearings are unusual in that you will need the permission of the Tribunal to adduce any oral evidence from witnesses.  Written statements are nonetheless admissible and highly instructive in cases of this nature.  One or two short witness statements will usually form part of the body of evidence that the Judge will be asked to assess.  Any written statements that are prepared at the interim relief stage, will form part of the evidence in the main hearing and so it is vitally important that witnesses are proofed correctly and their statements are accurate.  The same witness can prepare a second (fuller) statement for that hearing, but if their evidence changes this will undermine their credibility (or worse).

4. Agree directions with the other side for production of any agreed trial bundle and exchange of witness statements. The Tribunal will not issue case management directions, but will still expect the parties to an interim relief application to co-operate with each other, and behave in a way that is consistent with the overriding objective to ensure that the Tribunal can dispose of the case expeditiously and fairly.  When acting for the Respondent we would always look to take the lead in that discussion with the other party and manage the timetable strictly.  Sometimes part of the impression to be drawn can come from the parties’ conduct of the litigation, a point not always appreciated by opponents.

5. Apply for an extension of time to file your Response. The time limit for filing the Response to the Claim does not stop when there is also an application for interim relief. In our experience, Tribunals are sympathetic to the time-intensive preparation needed to prepare for an interim relief hearing, and will generally provide Respondents that make a timely application, with extra time to file their Response until after the interim relief hearing. Extensions of between 14-28 days are usual, but it is important that the application for an extension is made in a timely fashion.

I am very pleased to report that, by following these steps, we were successful and the Claimant’s application for interim relief was refused.  It was a great result for the client, and the product of a fantastic team effort from the entire Torque Law team and Counsel after 3 weeks of intensive work.  Interim relief hearings are not for the faint-hearted but they’re certainly the type of claim that we can handle with our team of experts on a cost-effective basis, so please do get in touch with a member of the team at info@torquelaw.co.uk or on 01904 437680 should you be the (unlucky) recipient of one of these cases.