21st September 2020

Interim relief in whistleblowing cases

Article by Linda Wilson | Employment

Due to the COVID-19 pandemic and a sharpened focus on health and safety in the workplace, there has been an increased interest in the statutory regime that protects employees from “automatically unfair dismissal” for certain prescribed reasons.

For example, the law protects employees who use reasonable means to bring their employer’s attention to circumstances connected with their work that they reasonably believe are harmful or potentially harmful to health and safety. This is where either there is no health and safety representative or safety committee, or it was not reasonably practicable to raise the matter through a representative or committee. There is also the more commonly known “whistleblowing protection” where an employee cannot be dismissed for raising a protected disclosure.

What is interim relief?

An Employment Tribunal can grant interim relief by ordering the employer to continue employing the employee until the case is finally decided. If the employer is unwilling to continue to employ them, the employer could continue paying their salary.

Interim relief can only be sought if the alleged reason for dismissal is one of the following automatically unfair reasons:

  • Union membership activity.
  • Whistleblowing.
  • Activities as a health and safety representative, a working time representative, a pension scheme trustee, or an employee representative for the purposes of collective redundancy or under the TUPE regulations.

It is most used in cases concerning Trade Union membership although it has also been used in whistleblowing claims.

Bearing in mind how long some cases are taking to get to Tribunal, it can sometimes be significantly advantageous to the employee to seek interim relief. It can also be sensible from a tactical viewpoint in attempting to get the parties to agree a settlement.

How do you get interim relief?

Despite interim relief being available for the cases outlined above, it is not commonly used and this is likely to be due to the hurdles that an employee must jump before it is granted.

In a whistleblowing case, interim relief can only be granted if the Tribunal thinks that the employee is “likely” to establish at full trial that the protected disclosure was the reason (or principal reason) for dismissal. “Likely” means more than just a “reasonable prospect of success”. There is no need to establish that the employee “will” succeed at trial, but the Tribunal should consider whether the employee has “a pretty good chance”.

The Tribunal and the employee therefore must address the following:

whether the employee:

1. has made a disclosure to the employer;

2. believed that the disclosure tended to show one or more of the following matters:

  • Criminal offence
  • Breach of any legal obligation
  • Miscarriages of justice
  • Danger to the health and safety of any individual
  • Damage to the environment
  • Deliberately concealing any of the information above.

3. whether the employee’s belief was reasonable;

4. did the employee believe the disclosure to be in the public interest; and

5. was the disclosure the principal reason for the dismissal.

Not only does an employee have to act very quickly with an application for interim relief, they also have to persuade the Tribunal that they will succeed, whilst the employer will be putting together evidence to try and show the Tribunal that this is not the case.

Other remedies for whistleblowing dismissals

As with other unfair dismissal cases, an employee can claim for compensation for the losses flowing from the unfair dismissal. However, unlike with normal unfair dismissal, the significant benefit of a whistleblowing dismissal case is that there is no cap on any compensation, making it very attractive to employees.

Sometimes in whistleblowing cases there can also be significant ongoing career loss if they are unlikely to be able to secure employment in the same industry once it is known they have “blown the whistle”.

If you would like any advice regarding interim relief, whistleblowing or any other employment matter, please do call us on 01730 268211.

This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.