The Presidents of the Employment Tribunals in both England and Wales and Scotland have issued new guidance on applications for interim relief.

The guidance has been prompted by a marked rise in applications for interim relief (particularly in cases involving protected disclosures), together with a significant increase in the volume of material accompanying them. The Presidents suggest that both developments may be attributable, at least in part, to the growing use of artificial intelligence to prepare applications, resulting in those that are “too long and complex, contain irrelevant material and fail to focus on the key points in the case“.

The Presidents state that these trends are putting the courts under considerable pressure, particularly as interim relief is an emergency measure, requiring tribunals to determine an application for interim relief as soon as practicable after it has been received.

To make this process work as intended, the guidance makes clear that the parties must ensure that the material placed before the tribunal is proportionate and that applications will be listed by default before an Employment Judge for a hearing by video lasting no more than three hours. Extensions will only be granted in “exceptional circumstances” and where parties provide too much material to be read and understood in the allotted time, they will be required to identify the most important documents and restrict consideration to those documents. In the case of protected disclosures, this is likely to include copies of any disclosures made and copies of any key documents relating to the dismissal.

The increased ease with which applications can now be prepared may well result in more parties applying for interim relief, even where their prospects of success are limited. After all, if AI can remove many of the burdens of preparing an application, parties may feel more inclined to submit one, particularly given the potential benefits if interim relief is granted (including, for example, an order to reinstate the employee or to continue to pay a suspended employee until a full hearing). However, the Presidents offer a cautionary reminder that it is precisely because of the effect of these orders that the threshold for claimants to succeed in applying for interim relief is so high, stating that the test is “something nearer to certainty than mere possibility” that the claim would succeed at the final hearing.

The guidance concludes with four ‘practical observations’, focusing particularly on cases involving protected disclosures and reinforcing the high threshold that claimants must satisfy when seeking interim relief:

1. To have a pretty good chance of showing that one or more disclosures are protected, the claimant must have a pretty good chance of showing that: (a) they disclosed information, not simply a bare allegation; (b) they reasonably believed that the information tended to show one of the types of wrongdoing identified in section 43B(1) ERA, and (c) they reasonably believed that the disclosure was made in the public interest because it affected other people, not just the claimant personally.
2. The claimant will need to show that there is a pretty good chance the tribunal will find that the protected disclosure caused the dismissal. The employer usually disputes this. If an employer identifies an apparently good reason for dismissing the claimant that is unrelated to a protected disclosure, this is usually something the tribunal will need to decide at the final hearing on the basis of full evidence. It is difficult to see how the claimant will show that they have a pretty good chance of success, unless they have clear evidence that this was not the real reason.
3. The more hurdles the claimant faces in order to succeed with the claim, the more difficult it will be to persuade the tribunal that there is a pretty good chance of success. For example, a dispute about employment status, or a dispute about whether the claimant’s resignation should be construed as a dismissal, will make it even less likely that interim relief will be granted.
4. Cases which are complex because they rely on a large number of disclosures may make it more difficult for a claimant to succeed because there may be no clear link between any specific disclosures and the decision to dismiss. In contrast, those cases which are strong and which have a pretty good chance of success are generally easily identified and explained.

To read the Presidential Guidance in full, click here.