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16 November 2020

274: Interim relief granted to employee claiming automatically unfair dismissal on trade union grounds

In very limited circumstances, an employee can seek ‘interim relief’ by applying to an Employment Tribunal for an order that their contract of employment will continue pending the final determination of their case. This will preserve their right to pay, benefits and continuity of employment. The right to interim relief only applies to certain categories of automatic unfair dismissal claims, including whistleblowing, health and safety, trade union membership, and TUPE or collective redundancy employee representatives’ dismissals. Although interim relief applications are rare, they may become more common as a result of an increase in Covid-related health and safety dismissals and the current delays in the Tribunal system. The recent case of Morales v Premier Fruits (Covent Garden) Ltd illustrates how interim relief applications can be used. Here, the employee was claiming automatic unfair dismissal on the grounds that he had used a trade union to bring grievances about a reduction in his wages and an alleged lack of PPE during the pandemic.

Due to a significant downturn in business caused by the pandemic, Premier Fruits (Covent Garden) Ltd proposed that all staff take a 25% pay cut and one week’s unpaid leave per month. The company believed that all staff had agreed to these changes. However, in May 2020, a trade union, United Voices of the World, lodged a grievance on behalf of Mr Morales complaining that the wage reduction had caused him detriment and that the health and safety of staff was being endangered by a lack of PPE. A subsequent staff meeting, to which Mr Morales was not invited, was recorded by a colleague at Mr Morales’ request. During the meeting, managers of Premier Fruits were recorded making comments hostile to Mr Morales and the union’s involvement, including ‘one particular person in the firm has decided to go to a union’, ‘that person is obviously not backing the company’ and ‘I will not be dictated to by a union’.

At a later meeting in May, Mr Morales refused to sign a document agreeing to the pay reduction. Following the end of the grievance process in July, he was dismissed, purportedly for refusing to agree to the wage reduction since the company was unable to sustain his full salary.

Mr Morales brought claims for automatic unfair dismissal on two grounds: being a member of a trade union or making use of trade union services; and making protected disclosures related to health and safety. He applied for interim relief, which meant he had to show that at the full hearing of his case it was likely that he would be able to establish that he had been unfairly dismissed for at least one of these reasons.

The Tribunal granted interim relief in relation to Mr Morales’ claim of automatic unfair dismissal on trade union grounds. The recording of the staff meeting was persuasive evidence of strong hostility to union involvement, and the Tribunal concluded that it was likely that Mr Morales would be able to show at the full hearing that he was dismissed because he had sought the assistance of a trade union to bring a grievance. Mr Morales’ claim that he had been dismissed for making a health and safety disclosure was less persuasive and an order for interim relief was refused.

In many cases, it will be difficult for an employee to meet the test of showing that they are ‘likely’ to succeed at the full hearing. Here, the covert recording was unusually powerful evidence that the employer opposed the union’s involvement. This is also a reminder of the risks associated with covert recordings, which have become easier and possibly more tempting as a result of homeworking. Interim relief applications involve considerable time pressure and costs since they must be made within seven days of dismissal, and the employer must be given only at least seven days’ notice of the hearing. A Tribunal will not make an order giving the employee the right to attend work, but the employer will normally be required to pay the employee from the date of dismissal until the final determination of their case. These payments are not recoverable even if the employee is unsuccessful at the final hearing.

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