Rare to routine: AI and the interim relief surge

Interim relief applications are rising sharply and can be extremely costly for employers on the wrong end of a successful application. In this article, we explain what’s happening, how the role of artificial intelligence (AI) is impacting this surge and how employers can protect themselves.

What is interim relief?

When an ex-employee issues an Employment Tribunal claim alleging that they have been automatically unfairly dismissed (because of one or more of a limited number of reasons), they may advance an application for interim relief.

An interim relief application is where the claimant argues that it is ‘likely’ that the Tribunal will find that they were automatically unfairly dismissed at the final hearing.

When granted, interim relief is an order by the Employment Tribunal for an employer (the respondent) to either:

• (a) reinstate the claimant as an employee on their original terms and conditions of employment had they not been dismissed; or
• (b) re-engage the claimant on terms no less favourable than their original terms and conditions of employment had they not been dismissed), until the final hearing or the claim is otherwise settled.

If these options are not agreeable to the respondent (for example, because they do not wish to have the claimant back on site), and the claimant has not unreasonably refused them, the Tribunal will usually make an order for the continuation of the claimant’s employment contract.

An order for continuation of the employment contract results in the respondent continuing to keep paying the claimant their full basic salary and contractual entitlements (including pension contributions) until the claim is determined at the final hearing or settled.

Given current Tribunal waiting times, a successful interim relief application can mean funding the claimant’s salary and full contractual entitlements for two, and in some cases three, years. This represents a significant sunk cost for any employer.

The statistics

Employment Tribunals have seen a marked increase in interim relief applications. In some regions, what was once around one application per month has risen to between two and four applications each week.

What’s driving the surge?

Employees are increasingly aware of their rights, driven in part by social media and news coverage. However, the rapid growth in AI technology is also fuelling a sharp rise in these previously rare applications.

Playing your cards right

Interim relief applications are notoriously difficult to pursue successfully, with most applications failing. Our experience in successfully defending employers against interim relief applications shows there is a high bar for claimants to meet.

In many cases, claimants may be better served by not pursuing an interim relief application, even where AI tools point them in that direction. A clearer strategy is often to focus on building a clear, well-structured case that allows them to explain, in plain English, to the Judge and the respondent:

1. What they are unhappy about
2. Why they are unhappy about it
3. Who they say is responsible.

At its current stage of development, AI-generated claims that advance multiple applications (such as one for interim relief), statutory references and case law often lack clarity. This rarely helps the claimant, the respondent or the Judge tasked with understanding of the claim before giving judgment.

Claimants are encouraged, therefore, to play their cards right. Using AI as a light-touch support tool when finalising a claim may be sensible. However, relying heavily on AI-generated documents which contains applications, statutory references and case law which they do not know or, perhaps, wholly understand, is actively unhelpful to their own case in our experience.

Top tips for employers facing an interim relief application

1. Act quickly

The notice of interim relief hearing that an employer receives may only provide them with seven days’ notice of the hearing. This is not likely a typographical error by the Tribunal. An employer needs to move fast. In view of the risk associated to an employer with a successful interim relief application, a hearing of this nature should be treated as akin to preparation for injunctive relief proceedings or a mini final hearing. Employers are strongly advised not to disregard the notice for a day or two whilst mulling things over, but to act fast and begin preparing for the interim relief hearing right away.

2. Evidence gathering

In practice, a claimant has less than an hour to persuade a Judge as to why their automatic unfair dismissal claim is ‘likely’ to succeed at the final hearing. The respondent will have approximately the same amount of time to persuade a Judge otherwise and to cast doubt on the merits of the claimant’s case. Evidence is vital. Paper and witness evidence is critical and should be identified, extracted and refined.

3. Secure specialist legal support

The financial exposure from a successful interim relief application is significant. Employers should act quickly to obtain specialist employment law advice. These cases require intensive preparation in a very short timeframe and experienced advisers can materially improve an employer’s prospects of successfully resisting an application while reducing management time and pressure associated with this type of hearing.