In order to succeed in an application for interim relief, employees have to show that they are “likely to succeed” in their substantive complaint. The Employment Appeal Tribunal (EAT) held in Hancock v Ter-Berg and ors that that test applies to “each and every issue” that might be relevant in terms of deciding the claim of unfair dismissal.
Basic facts
Dr Hancock worked as a dentist under an agreement which expressly stated that it was not a contract of employment. Clause 36 stated that he could appoint a locum in the event that he was ill, but that it had to be someone acceptable to NHS England, Midlands and East. Clause 37 stated that it could be terminated with three months’ notice.
After complaining about another dentist in the practice, Dr Hancock was given notice of termination of his contract and three months’ pay in lieu. He brought an unfair dismissal claim on the basis that he had made a protected disclosure, along with an application for interim relief under section 128 of the Employment Rights Act 1996.
Relevant law
Section 128 states that an employee dismissed for making a protected disclosure (or for trade union reasons) can ask the tribunal to order their employer to continue their employment until such time as the unfair dismissal claim has been adjudicated by the tribunal.
Section 129 states that if it appears to the tribunal that the employee is “likely to succeed” in their complaint of unfair dismissal, then it should grant the application for interim relief.
Tribunal decision
The company asked for the interim relief hearing to be postponed until it could be established that Dr Hancock was an employee. The tribunal turned down the request on the basis that the “likely to succeed” test under section 129 applied not just to the reason for dismissal but also to the contested issue of employee status.
It determined that Dr Hancock not only had a “pretty good chance” of success in showing that he was an employee (because of the degree of control that the company exercised over him), but also that he had been dismissed for having made protected disclosures.
The company appealed on the grounds that the tribunal was wrong to consider Dr Hancock’s application for interim relief before establishing that he was actually an employee.
EAT decision
Upholding the tribunal decision, the EAT held that “each and every issue” that might be relevant to deciding a claim of unfair dismissal was part of the overall “complaint” to be determined by the tribunal. Indeed, if it did not consider all the elements of the claim then it would not be doing its job of considering what the likely outcome of the complaint was likely to be.
In order to consider whether Dr Hancock was an employee, as the company requested, would require disclosure, witness statements and a substantive hearing at which witnesses would be questioned and cross-examined. As the EAT pointed out, “[t]o convene such a hearing, even on an expedited basis, would lead to substantial delays in the hearing of an interim relief application. Indeed, the intended interim nature of that hearing would be substantially undermined”.
It therefore held that the “likely to succeed” test applies to all elements of the complaint of unfair dismissal. As such, the tribunal was correct to apply that test to the question of employee status.
Comment
Interim relief is available in cases where dismissal was due to whistleblowing or trade union activities and this decision applies to both situations. It reinstates the status quo by reviving the contract and the duty to pay the claimant until the main claim is decided. It is an emergency remedy and is a bit rough and ready to reflect the speed with which it needs to be claimed; the application itself must be made before the end of the seventh day following the effective date of termination.
This is a decision where legal theory sits a little uneasily with real-life. Legally it makes some sense; interim relief can only exist as an ‘add-on’ to an unfair dismissal claim and if that seems like a weak claim then interim relief may not be appropriate. However, the ‘likely to succeed’ test is a high one and the tribunal makes its decision without any evidence and well before documents are disclosed or witness statements written.
Interim relief was always problematic for several reasons, and is rarely granted as a result, but this decision simply emphasises that in practical terms only obviously ‘slam-dunk’ cases can hope to meet this test. Its usefulness as a remedy is therefore very limited.