Employment Tribunal statistics: A growing backlog and the rise of interim relief applications

The annual Employment Tribunal statistics have been published. The headlines are:

• The number of claims is increasing (an annual 39% increase in single claims)

• The number of claims being disposed of is decreasing (an annual 12% decrease for single claims)

• This gap between receipts and disposals means that the single claim case load in the Tribunal has increased by 55%

This means that the backlog in the Tribunal system is growing. We are already seeing cases being listed now for hearings in 2030.

One particular area of increased claims that has caught the Tribunal’s attention is that of applications for interim relief. Interim relief is a relatively rare remedy only available in an unfair dismissal claim where the dismissal is alleged to be for one of the automatically unfair reasons for dismissal (most commonly whistleblowing). Interim relief applications must be made within 7 days of a dismissal and then require an urgent hearing to decide whether to award interim relief. Interim relief means that the employer is ordered to reinstate the claimant, suspended on full pay, pending the final outcome of the case at a full hearing.

Because of the effect of an interim relief order on an employer, there is a high threshold for a claimant to satisfy in order to obtain interim relief and the majority of applications do not succeed.

Concerns in the number of increased interim relief applications

The Tribunals have noticed a marked increase in the number of interim relief applications, each Tribunal historically having received in the region of 20 applications per year, but now receiving those numbers monthly. There is a suggestion that this increase could be attributable to the number of claimants using AI to assist with claims.

The Tribunal’s concern is that because of the nature of such applications, they require urgent hearings, which then causes delay for those claims already in the system, only for the majority of such applications for interim relief to fail.

The Presidents of the Employment Tribunals in England, Wales and Scotland have therefore issued joint Joint Presidential Guidance.

Guidance

This guidance sets out the background to such applications and, in the context of whistleblowing claims, the legal test of having to show “a pretty good chance of showing that”:

• The Claimant made a protected disclosure

• The dismissal was caused by the protected disclosure

It then notes some “practical observations” such as:

• 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

• 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

• 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

The guidance does not change the law, nor change the Tribunal processes. It does, however, remind claimants of the high hurdle to obtaining interim relief.

Even if the guidance does result in reduced interim relief applications, given that there were 50,000 single Tribunal claims made last year, it will not have a significant impact on the backlog and larger-scale reform is needed to do so.