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July 16, 2020

Reading List
Taplin v C Shippam Limited [1978] IRLR 450 (EAT)
Parkins v Sodexho Ltd [2002] IRLR 109
London City Airport Ltd v Chacko [2013] IRLR 610 (EAT)
Raja v Secretary of State for Justice [2010] UKEAT/0364/09/1502

The Issue
We are beyond the honeymoon stage. Just a couple of months ago the furlough scheme and all it offered seemed, if not the cure, then a soporific balm to our current economic and workforce woes.

But as my previous article sets out, the scheme (which was surprisingly robust considering it had been implemented in under six weeks) did lend itself to a particular types of fraud, and those types of fraud, in turn, relied upon a degree of complicity by or knowledge of the workforce… the using of one’s personal email address to do a little work whilst at home… after all, it’s not really working.

But as the scheme becomes less generous, as employees become less fearful of losing their jobs, as the normal, every-day workplace disputes continue to arise, that tacit agreement, that nod and a wink re the furlough scheme, becomes strained.

New Cases
But those decisions, where employers have exploited the furlough scheme, are now coming home to roost. Already in Chambers we have been instructed in relation to two cases where employees have been sacked for expressing misgivings about the furlough scheme and how it was being exploited by their employers. To make it clear, these are two separate employers, two separate claimants, coming into Chambers with identical cases, in the same week.

There will be many, many more, especially once the furlough scheme settles into the less generous, less exciting stages of the ongoing employment relationship.

But what can an employee do?
… or for that matter what should the employer know about any potential claims they may face?

Let’s give the raising of complaint about how the furlough scheme is being used a legal label: ‘whistleblowing’. We all know that whistleblowers are protected from detriment if the whistleblowing is the primary reason for that detriment. A standard ET1 can be issued, and the claim can be heard sometime in 2022. It isn’t going to be hugely helpful to the employee who has lost their job today, when faced with very real difficulties in finding alternative employment in the near and medium future.

Are there other options?

Interim Relief
The short answer is yes.

Interim relief (not in the High Court, that’s different) but in the Employment Tribunal is not a very well-trodden path. Speaking to a highly experienced employment solicitor recently, in their 35 years of practice they have never sought interim relief in the Employment Tribunals… and this solicitor is not someone who avoids a scrap! But it just goes to show that although we are all aware of it, it hasn’t really been something we’ve thought about in much detail, me included.

Why Bother?
But with CVP hearings becoming a regular feature of our litigation landscape, the ET backlog stretching well into 2022 and the usual requirement for whistleblowing cases to be heard by a panel of three, interim relief applications have very real, tangible benefits right now, namely:

  • it allows the claimant to be paid by the employer until final hearing;
  • the issue is generally decided ‘on the papers’ so it can be listed more swiftly; and similarly
  • it is (generally) assessed by a judge sitting alone, again, allowing swifter listing (s.4(2) ETA 1996).

The ERA says that such applications must be heard as soon as is ‘practicable’. The parties are far more likely to find a half day or a full day in front of a single judge, using the interim relief process, than three or four days in front of a full panel.

What Are the Technicalities?
An application for interim relief (in whistleblower circumstances) is made pursuant to s.128(1)(a) of the Employment Rights Act 1996. Of course, the automatically unfair reason for the dismissal is whistleblowing, as per s103A of the Employment Rights Act 1996 – this means that employees with less than two years’ employment may also apply for interim relief in these circumstances. So far so good.

The test to be applied by the ET in granting interim relief is that a claimant is ‘likely’ to be successful on all the components of the claim. Note, this is a higher bar than the 51% ‘more likely than not’ used in normal civil and Tribunal proceedings. That isn’t to say the claimant must meet the ‘likely’ test on every feature or fact in the case, simply on those that are necessary to be successful in the claim. In terms of whistleblowing, to paraphrase:

  • that the Claimant made qualifying disclosures;
  • that the Claimant believes the disclosures tend to show one of the matters set out at s.43B ERA;
  • that the belief was reasonable, and
  • the disclosure(s) was or were the principle reason or reasons for the detrimental treatment complained of.

Even if just one of the limbs is shaky, then the Tribunal cannot grant interim relief. There must be a ‘likelihood’ on each and the burden of proof is on the claimant in such applications.

Time Limits
Unlike normal ET claims, if an application is being made for interim relief the application must be made within 7 days of the EDT (s.128(2)). Time really is of the essence.

The parties aren’t required to comply with the early conciliation provisions.

What Are the Practicalities?
Interim relief litigation is a little different to the norm. Put to one side our comfort blanket of the CPR, or the Employment Tribunal Rules (other than those relating to professional conduct etc.), interim relief is a rough and ready procedure. For instance, it will only be in exceptionally rare circumstances that a Tribunal entertains an application for postponement. This is a “roll your sleeves up and get on with it” style of litigation.

If acting for the Claimant: then your ET1 is likely to be the key document. It needs to be drafted carefully and persuasively. A beige narrative will fall short. If you can have a bundle ready to go, then include bundle page references within the ET1. This will, of course, be dependent on the complexity of the narrative. If not, then you should ensure the bundle is ready to go very soon afterwards.

I would also recommend including a chronology within the ET1. Often the chronology can be the most powerful evidence in establishing the case, for instance: Monday, asked to work whilst on furlough; Tuesday, grievance about this; Wednesday, sham grievance investigation or meeting; Thursday, purported ‘discovery’ of gross misconduct committed by the whistleblower; Friday, dismissed. You may want to support this chronology, in due course, by a draft witness statement explaining the chronology or adding a little colour to it. That said, draft witness statements are most certainly desirable though not, technically, a necessity.

Finally, at the very top of the ET1, you should highlight that this is an application for interim relief, it allows the ET staff to process it accordingly.

If acting for the Respondent: the Tribunal must inform the Respondent about the application at least 7 days prior to the hearing (s.128(4)). This means that the ET may well have identified a date to hear the application and only then will the Tribunal inform the Respondent that they need to be there, with whatever evidence they wish to rely upon. The usual stepped, regimented process in relation to disclosure goes out of the window.

Importantly, in relation to ET3s, the timeframes for serving an ET3 in response are not truncated. Therefore, if the hearing is listed before the time an ET3 would have been served, so be it. But of course the Respondent will want to serve a position statement on the Tribunal and the Claimant, setting out its denial of the allegations and pointing out why the evidence in support of one or more of the components falls short of the ‘likely’ test.

The parties will have to work together to make sure any joint bundle has all the key documents in it, probably in PDF or other electronic form (bearing in mind current working conditions). If a bundle can’t be agreed, clearly labelled, separate bundles will be necessary. Whether Applicant or Respondent, you’ll want your bundle to look a million dollars, you want your documents, your evidence, to be easily discoverable and referenceable; you need to make it as easy as possible for the EJ to prefer your case.

High Stakes
These applications aren’t for the faint-hearted, or indeed, the timid advocate.

This is persuasive advocacy at its most raw. The case will not be in apple-pie order, the issues won’t be as clearly defined as we would all like, and the consequences of a Claimant being successful, is that they will continue to be paid until final hearing.

And even if, in the fullness of time, the Claimant is unsuccessful, the Claimant is not required to pay back the sums they received in the interim (costs applications notwithstanding).

On the other hand, should a Claimant fall short in establishing the likelihood of eventual success, particularly in the current climate, that Claimant may face many months of low income and unemployment.

What are the options should a party disagree with an EJ’s decision?

In short, there’s not much a party can do, despite the severe consequences of an unfavourable finding. Taking the body of case law in this area as a whole, the general approach can be summed up as follows: the EJ’s job is described as being ‘on the front line’ and their job is to assess these types of application as they ‘appear’ to them.

It would take a very wayward decision, akin to perversity, for an appeal to be successful in such circumstances.

Interesting times for an employment lawyer.

Richard Shepherd