Wednesday, 3 April 2013

Interim Relief

[Thanks to Ed McFarlane of Deminos HR for preparing this case summary]
Should a claim for interim relief be decided on the balance of probabilities as to whether a Claimant will ultimately succeed in showing that dismissal was on a prohibited ground?

No, says the EAT in London City Airport Ltd v Chacko, dismissing the employer's appeal against a claim for interim relief for a Claimant alleging dismissal for trade union activities. The employment judge had correctly applied the statutory test, and there was no error of law in the tribunal judgment.

The EAT considered controversy over the correct approach to the test for interim relief, and the meaning of it being 'likely' that the tribunal will ultimately find that a dismissal was for a prohibited ground, noting that it must "be established that the employee can demonstrate a pretty good chance of success" at a final hearing, an approach that had been consistent for over three decades.

The EAT noted that interim relief applications are considered on a summary basis, assessing the untested documentary evidence of the parties, and that "the employment judge must do the best he can with such material as the parties are able to deploy by way of documents and argument in support of their respective cases". The requirement for a swift hearing "must of necessity involve a far less detailed scrutiny of the respective cases of each of the parties and their evidence than will be ultimately undertaken at the full hearing of the claim".

1 comment:

Mark Benney said...

Taplin v Shippam is quite unsatisfactory but the frustrating thing is that early scrutiny by the Court of Appeal seems unlikely.

"A pretty good chance" is all very well but most ordinary people would probably say that means "40% or 50%". But what Taplin actually decides, as confirmed by Langstaff J in Benney v Defra(!) is that "likelihood" needs to be demonstrated to a standard of "significantly greater than 51%".

Accordingly such awards are still rare, which probably goes against the original policy thinking behind the remedy.