Applications for Interim Relief in Whistle-blowing Claims

Introduction

Applications for interim relief under s.128 of the Employment Rights Act 1996 appear particularly attractive to high-earners with whistle-blowing claims. The successful Claimant can gain a continuation of employment order providing for full pay until final disposal of the claim (including appeal). In this article we discuss the issues relevant to such an application, the recent Raja case, and key steps for both sides.

An application for interim relief can enable a Claimant to exert a great deal of pressure on the Respondent at a very early stage in proceedings. The Respondent will incur the irrecoverable costs of defending the application, and even if successful may become more inclined to settle. Conversely, an unsuccessful application can hand the tactical advantage to a properly-advised and fully-prepared Respondent.

Statutory Background

S.128 ERA provides that an employee bringing a claim for unfair dismissal who alleges that the dismissal occurred because of his activities as a union member; health and safety representative; employee representative for the purposes of TUPE; trustee of an occupational pension fund; or because he has made a protected disclosure may apply for interim relief.

Under s.129(1), if it appears to the tribunal hearing the application that "it is likely that.... the tribunal will find that the reason ...for his dismissal is one of those specified" then it will ask the employer to reinstate or re-engage the employee on terms not less favourable than those applicable had he not been dismissed. Where the employer is unwilling to do so (as we would expect in most cases) then the tribunal will make a continuation of employment order (s.129(9)), with the effect that the contract of employment continues in force from the date of its termination until the determination or settlement of the complaint.

Any payments made under this order are not recoverable by a Respondent who succeeds at the full merits hearing, so a Claimant successful at the interim stage will effectively have their claim funded all the way through to trial and any subsequent appeal.

Relevant Case Law

The key word in the s.129(1) test for the Claimant is "likely". The leading authority remains that of the EAT in Taplin v Shippam Ltd, where it was alleged by the employee that he was dismissed for taking part in trade union activities. The statutory test for the granting of interim relief was a forerunner to, and in comparable terms to that in...