What a relief!

Raja v Secretary of State for Justice

The law says that anyone making a claim of unfair dismissal for health and safety reasons (among others) can ask a tribunal to make them an award of interim relief. In Raja v Secretary of State for Justice, the Employment Appeal Tribunal (EAT) said that there was no basis in law to say that these awards could only be made in simple factual disputes.

Basic facts

Mr Raja worked as a prison officer in a young offender’s institution in Feltham but was dismissed on 19 December 2008.

He submitted a number of tribunal claims, including race and disability discrimination. He also claimed that the reason for his dismissal was on the grounds of public interest disclosure and/or health and safety.

As part of his claim he sought interim relief (an application to convert the dismissal into a suspension on full pay until the tribunal hearing), on the basis that his complaints about his treatment in relation to race and disability constituted protected disclosures, or that he was dismissed for health and safety reasons.

Various statutory provisions set out that “interim relief” applications can be made in certain cases where it is alleged that the real reason for dismissal is health and safety reasons, or making a protected disclosure (“whistleblowing”). Interim relief is available in certain other types of claims also, including trade union victimization dismissals. An application for interim relief is a form of preliminary hearing which requires the tribunal to decide whether it is likely that the claimant will succeed at full hearing. If the tribunal decides that it is likely, it makes a reinstatement order pending the full hearing.

Tribunal decision

The tribunal noted that, under section 129 of the 1996 Employment Rights Act (ERA), claimants must show their claim is “likely” to succeed. The tribunal said that, following the decision in Taplin v C Shippam, claimants must show they have “a pretty good chance of success”. Given the vast body of evidence that Mr Raj had presented spanning three years, the tribunal said it was impossible to reach a view on the likely success of one or two of his claims without hearing all the evidence.

It decided that, as an application for interim relief is “intended to apply to claims where there is a clear and simple conflict between the parties' assertions” that could be addressed in an emergency, it was not suitable for a complicated, long running dispute about race discrimination, disability and arrangements about how to return to full time working, such as this one.

It therefore rejected his application.

EAT decision

But the EAT has overturned that decision. In this case, the EAT said that the tribunal had added another criterion for which there was no basis in law. It confirmed that if a claimant qualifies to make a claim for interim relief under the particular statutory rules, then a tribunal must hear and decide it. It cannot decide that a particular case is too complicated to be dealt with through interim relief.

And although the employment judge had rightly pointed out that an application under section 128 could not be made in race or disability cases, she had twice referred to the difficulty of deciding the strength of these claims without hearing the evidence on discrimination although that was irrelevant under a section 128 application. In that situation, she should have asked the parties to direct her to the relevant parts of the claim form and documentary evidence that were covered by section 128.

As for the meaning of “likely” in section 129, the EAT said that the tribunal was right when it said Mr Raja had to show he had “a pretty good chance of success” at the main hearing.

It remitted the case to another tribunal to hear his application for interim relief.