Since joining these chambers in 2006 it took until 3rd August 2018 to receive my first set of instructions to make an application for interim relief under section 128 Employment Rights Act 1996. Not having come across this before, I did some research (there is surprisingly little in Harvey) and of course spoke to some colleagues to see what the deal was. It turns out that although this relief has been around in some form or another since the heady days of 1975 (that would be Harold Wilson’s reign for those keeping track) it is still a rarely utilised piece of legislation. So for those of you who have, like me, not come across this before, or it was 1975 when you last did, here is what I have learned.
The relief is available only in certain automatically unfair dismissal claims. Health and safety (only 100(1)(a) and (b) so not in the case where the employee walks off the shop floor); representatives performing activities on behalf of the workforce in working time matters; employee representatives and whistleblowing. It was the last of these, a claim under section 103A, that it seems most likely to occur and indeed this was the claim I did.
The time limit for bringing an application under section 128 is extremely short: it has to be presented to the ET within 7 days of the EDT (section 128(2). Similarly the turnaround of these hearings is lightning quick. They are supposed to be ‘as soon as practicable’ and the respondent is to be given at least 7 days’ notice. By way of example, in the case I did, the claimant was dismissed on 10/7/18, she issued her ET1 16/7/18 (which included an application for interim relief), on 19/7/18 the ET confirmed receipt of the claim giving the respondent the usual 28 days to respond and listing the interim relief application for 6/8/18. Due to this you are highly unlikely to have an ET3 by the time the hearing. Oral evidence will not usually be taken at these hearings (unless otherwise directed) and all documents that are going to be relied upon need to be exchanged 3 days in advance of the hearing. With such a tight timeframe the legislation includes the provision that it shall not postpone the hearing unless there are special circumstances, and if you’re wondering unavailability of Counsel could amount to a special circumstance (see Lunn v Ashton Derby UKEAT/0039/18/BA ‘special’ does not mean ‘exceptional’), but it is a matter of getting your house in order sharpish.
The test applied is set out in section 129 that being where ‘it appears to the tribunal that it is likely that on determining the complaint’ the tribunal will find the reason or principle reason is one of those set out above. The phrase ‘likely’ has, perhaps unsurprisingly, generated a fair amount of case law. See Taplin v C Shippam Ltd  IRLR 450, Ministry of Justice v Sarfaz  IRLR 562, Raja v Secretary of State for Justice UKEAT/0364/09  All ER (D) 134 (Mar), London City Airport v Chacko  IRLR 610, Wollenberg v Global Gaming Ventures (Leeds) ltd & Herd UKEAT/0053/18/DA, Al Qasimi v Robinson UKEAT/0283/12/JOJ . What can be distilled from the case law is:
If the application is successful the claimant is reinstated or re-engaged unless the respondent refuses to do either. In which case the claimant can secure an order for the continuation of a contract of employment under which they are entitled to an order that from the date of termination to the settlement of the complaint they shall still receive pay and any other benefit (section 130). In other words, if they are not taken back by the respondent, which would be understandable, they get full pay whilst not having to go in.
Interestingly in the case of Marisa Turullols v HMRC  UKFTT 672 (9/7/14) the Tax Tribunal found that although section 128 provides that ‘the contract of employment continues in force’ the true question as to taxation is whether payments arise from employment as opposed to the employment contract. Because it was the termination of employment that enabled the interim relief application in the first place and the character of those payments are compensation (hence set off provision s130()(7)) they are not emoluments of employment and so exempt from income tax up to the £30,000 threshold.
These applications are unusual, but seemingly increasing in popularity. The Equality and Human Rights Commission has recently recommended that the availability of interim relief be extended to sexual harassment cases where claimants have been dismissed after having raised a complaint, and that the time limit for bringing the application be extended to 1 month. They can be a highly effective tool for a claimant to employ giving them not only an income but potentially the upper hand when it comes to negotiation. Any claim that looks good at first glance is worth an application, you get quick disclosure and a judicial opinion early on. Of course there’s always the other side to the coin: the burden is high and a negative outcome may result in poor settlement prospects and a costs warning.