CHAPTER ONE – WHAT IS INTERIM RELIEF?
Interim relief is an unusual, emergency remedy, available to employees who allege that they have been unfairly dismissed for certain prohibited reasons which have a wider public interest at their heart. The most common type of application for interim relief is one where an employee claims that they have been dismissed for making protected disclosures (‘whistleblowing’); less commonly, claimants assert that they have been dismissed for undertaking trade union activities or simply for being a trade union member.
The purpose of interim relief is to preserve the status quo between employer and employee until the final hearing of the dismissed employee’s unfair dismissal claim. In that respect, it is the closest thing to an injunction (or interdict, in Scotland) that is available in the employment tribunal, albeit the claimant does not provide a cross-undertaking in damages.
If the application succeeds, it prevents the dismissal from taking effect until the tribunal has heard the complaint of unfair dismissal. If the claimant wins interim relief, the respondent employer must either reinstate or re-engage them, or simply continue to pay their salary (under a ‘continuation of contract order’, during which the employee does not return to work), until the final hearing of the claim. Given the lengthy delays in the employment tribunal system at the time of writing, this could easily be a period of two years or more. For a recently dismissed employee, the prospect of having their salary paid for a couple of years without having to do any work in return is a very attractive one – even more so given that they will not have to repay any of that salary, even if they go on to lose their claim at the final hearing.
Because interim relief can be so beneficial to the claimant and so prejudicial to the respondent, the threshold for succeeding in an interim relief application is very high. As explained in Chapter Four, the legal test for interim relief is set higher than the legal test at the final hearing. It is hard to win an interim relief application – most of them fail.
This has not deterred claimants, however. There has been an enormous increase in applications for interim relief in the employment tribunals in the past year or two. Anecdotally, I have noticed far more such applications in my practice and those of my colleagues in 2025-2026. We now have an official indication of the magnitude of the increase in applications. In June 2026, as I mentioned in the Preface, the President of the Employment Tribunals (England and Wales), Judge Barry Clarke, and the President of the Employment Tribunals (Scotland), Judge Susan Walker, issued joint Presidential Guidance on Applications for Interim Relief (‘the Presidential Guidance’). They indicated that until recently, tribunals across the country might receive only 20 or so applications for interim relief in total each year. Now each tribunal region is receiving that many each month.
In the Presidential Guidance, the Judges point to artificial intelligence as a likely reason for the increase in applications, with dismissed employees, who are often acting as litigants in person, turning to AI for advice on what to do next. If so, given the number of applications that fail (and the Presidents emphasise that ‘Most applications … do not succeed’ in paragraph 3 of the Presidential Guidance), it seems that AI is not always giving them correct advice.
I rapidly found misrepresentations when I asked AI programmes, and ordinary search engines, about interim relief. Whilst they generally told me the basic principles with reasonable accuracy, there were often significant mistakes (such as suggesting that the legal test is lower than it in fact is) and the results tended to over-emphasise the attractions of obtaining interim relief (get your salary paid without having to work!) without giving any proper understanding of how hard it is to obtain the relief, or what a claimant really needs to do to make a successful application.
A particular difficulty presented by the increase in interim relief claims is that they are issued, and then heard, very quickly, which means that other hearings and trials are being pushed out of the way and further delayed, often by months. As the Presidential Guidance says, ‘the tribunal seeks to list [interim relief] applications swiftly because of their emergency nature. To make way for them, other hearings are often postponed or delayed. Because the success rate of applications for interim relief remains low, these trends have an adverse effect on the administration of justice, including causing unnecessary delay to other users. Further complexity is added when, in response to applications for interim relief, parties then make consequential applications (and counter-applications) for costs/expenses’ (paragraph 4).
This recent flurry of often hopeless applications is far from the system envisaged when interim relief first came on to the statute books. It has its origins in trade union law. It first appeared in relation to trade union rights cases, at section 78 of the Employment Protection Act 1975. As Cavanagh J explained in Steer v Stormsure Limited [2021] ICR 807, it was ‘limited to claims in which the alleged reason for dismissal was actual or proposed trade union membership or authorised union activities. It was introduced as a way of deterring lightning strikes which used to be a feature of the industrial relations landscape when a trade union official or activist was dismissed for trade union activities’ (paragraph 32).
And as Girvan LJ observed in Bombardier Aerospace (t/a Short Brothers plc) v McConnell and Ors [2007] NICA 27, ‘The granting of interim relief in an employment context is an exceptional remedy… The interim relief provisions were a response to the problem of dismissals of trade unionists which have the potential to generate suspicion of victimisation which on occasions can result in industrial unrest and industrial action… an application for interim relief is intended to head off industrial trouble before it begins or at least before it becomes too serious by allowing an employment tribunal to give a preliminary ruling at an emergency hearing’ (paragraph 7).
According to Harvey on Industrial Relations and Employment Law, Division NI at paragraph 594, when the right to interim relief was introduced in the mid-1970s, dismissals of a shop steward or other workplace representative accounted for some 40 per cent of working days lost through industrial action. Hence the introduction of this emergency remedy.
In those days, if a claimant succeeded in obtaining interim relief, it was unlikely that they would benefit from it for more than a few weeks or months. The tribunal system was not facing the years-long delays that plague it today. Figures from the Ministry of Justice (available on www.gov.uk) show that in 2025-2026, the employment tribunals received some 50,000 new ‘single’ claims (i.e. claims from individuals rather than those in group litigation) and disposed of around 26,000 claims. This is a 39% increase in the number of single claims received, and a 12% decrease in the number of single claims disposed of, compared with the previous year. There were 64,000 single claims still live as at the end of March 2026, a 55% increase over the previous year. As a result, in some regions, claims are being listed to be heard as far away as 2030! So in theory, a successful applicant for interim relief could now see their salary being paid for several years before their unfair dismissal claim is finally heard – a very different scenario to what was happening in the 1970s.
The big expansion of the right to claim interim relief came in 1999, following implementation of the Public Interest Disclosure Act 1998 (with the relevant provisions incorporated into the Employment Rights Act 1996 at Part IVA). Employees who allege that they were dismissed for making protected disclosures (‘whistleblowing’) thereby gained the right to apply for interim relief.
It soon became clear that an application for interim relief as a whistleblower is a more complex exercise than applying for it as someone allegedly dismissed for undertaking trade union activities. In the latter type of case, the tribunal is faced with a fairly limited enquiry into what the trade union member or would-be member is said to have done that allegedly caused the unfair dismissal. In relation to whistleblowers, however, anyone claiming interim relief on the basis that they have been dismissed for making protected disclosures needs to persuade the tribunal of a far greater number of matters – that every element of every protected disclosure that is relied on is likely to be made out at the final hearing – as we will see when we consider the legal test in Chapter Four.
As a result of these changes over time, applications for interim relief have increased in both complexity, and now, seemingly with the encouragement of AI, in number. Solicitors who did not see an interim relief application from one end of the year to the other are now seeing a flurry of them. Claimants seem to take the view, perhaps reasonably, that there is little to lose by making an application and potentially much to gain – and even if the application appears to have poor prospects, they may consider that simply making it may give them some bargaining power in any settlement negotiations. (Respondents often tell me it has the opposite effect, however!)
Over the past fifty years, interim relief has moved from being a niche, emergency remedy used only in cases of industrial strife, to a widespread response to many types of dismissal, used by increasing numbers of claimants whether or not their cases realistically qualify for it. Reading the case law gives an impression of a remedy that was often treated in a claimant-friendly manner back in the 1970s when it was first introduced. Latitude was given when claimants made mistakes in their applications in a way that I suspect might not be indulged now. Fifty years later, the tribunal system is struggling to cope with a tidal wave of interim relief applications, most alleging that the claimant was dismissed for being a whistleblower, and many of them brought without the slightest sense of what a claimant has to show in order to succeed.
It is not surprising that the Presidents have now issued the Presidential Guidance, which in my interpretation (not their words) aims in part to dissuade claimants from making some of the more hopeless applications. We have included the text of the Presidential Guidance in the Appendix at the end of this book, and I advise anyone involved in an application for interim relief to read it.
There is also advice on making or responding to interim relief applications on the ACAS website, which gives an example of both a successful and an unsuccessful interim relief application: www.acas.org.uk/interim-relief.
In the next chapter, we will look at all the statutory routes to bringing an application for interim relief.