In our webinar last week we touched on the existence of a largely unique remedy for whistleblowing dismissals, the concept of interim relief, more recently and lucidly known as a contract continuation order (“CCO”). Time did not permit a full rehearsal of the ins and outs of this potentially devastating employee tool, so here is a little more detail.
The CCO is only available in cases of dismissal for whistleblowing and a limited further class of prohibited reasons. In December last year we posted about Steer –v– Stormsure in which the EAT found that although interim relief did not apply in discrimination cases, it clearly should. In the last month the Court of Appeal has confirmed this to be wrong (or maybe right in principle, but that it is for the government to legislate to create that entitlement before the EAT could apply it).
Let us say that your employee is dismissed in circumstances which he believes to be in retaliation for his making a protected disclosure (for covid purposes, this expressly including his carrying out certain health and safety activities). He has to act quickly and make a claim to the ET within seven days of the termination date. The usual requirement to go to ACAS Early Conciliation first does not apply here. The ET will then convene an expedited hearing, though that may be a relative term given the current backlog of cases, and will then give you as employer potentially as little as seven days’ notice of that date.
Seven? You may take the view that it is clearly impossible to prepare adequately in such a period for any case at all, let alone one so potentially complicated or expensive as this, and therefore that this must be some ghastly clerical error by the Tribunal. Don’t waste your time applying to the ET for a deferral on that basis – section 128(5) ERA prohibits an ET from adjourning such hearings unless “special circumstances” justify that course of action, where “special circumstances” don’t include the patent impossibility of preparing a full defence with witnesses and legal representation all in seven days. Possible grounds might include the serious illness or otherwise unarguable unavailability of the decision-maker, the only person who can give the evidence at the heart of the claim, i.e. why your employee was dismissed. Otherwise it will inevitably be a mad scramble to build your case on the reason for the dismissal and, as a fall-back position, any clear evidence that the employee could not reasonably believe that his disclosure was (i) true; (ii) in relation to the actual or likely breach of a legal obligation or a criminal offence; or (iii) in the public interest. “Fall-back”, because if you are arguing those points, you are at least tacitly recognising that you may indeed have dismissed in retaliation for the disclosure and so need to knock it out as protected. Far better to focus on establishing and evidencing an alternative rationale for the dismissal in the first place if you can.
At the expedited hearing the ET will be looking at whether it is “likely” that the employee will ultimately succeed in showing that he was dismissed for whistleblowing. There have been any number of cases as to the precise degree of probability inherent in “likely”. The current formulation is “a pretty good chance”, a bar significantly higher than the 51%-plus balance of probability test which would be applied to the reason for dismissal at the main hearing. Therefore the more that you can do in that seven days to cast doubt on the employee’s ability to establish a connection between the disclosure and the dismissal, the better.
If you are unsuccessful at the expedited hearing, the Employment Tribunal will ask you to reinstate or re-engage the employee, so you can at least get some value out of the arrangement that way, but if you will not, then it will issue the CCO, effectively an order for suspension on full pay and benefits, including pension rights, with uninterrupted continuity of service. That CCO will usually last until settlement or determination of the case, including any appeal on the whistleblowing point, so potentially well over a year. The employer can apply to the ET for the revocation of the order before then if there is a “relevant change of circumstances”, perhaps the employee taking up a job elsewhere or his whole workplace closing in the interim such that we would certainly have lost his job at that point anyway, but such revocations are rare. It is possible in principle that those changed circumstances could include the availability of new evidence which was not taken into account at the interim hearing. However, by analogy with an ET’s broader powers to reconsider its own decisions, it is likely that that new evidence would have to be really compelling and that there would have to be some very good reason why it (or representations around it) could not have been available at that time.
The colossal sting in all of this is that even if your employee fails to show at the main hearing that he was dismissed because he blew the whistle, he doesn’t have any to give any of the money back and he will be treated as having the additional continuous service with you for pension and all other service-related purposes. That is a pretty penal sanction, especially given current Tribunal waiting lists. It is hard to see this as anything but encouragement to the claimant to delay that main hearing for so long as practicable through the making of assorted case management applications in the meantime and the strategic unavailability of representation at the vital moment. The employer’s only ability to mitigate this potential is of course to ensure that it is made clear beyond argument to the employee at or before the point he is dismissed that you do have concrete grounds for that decision which are unrelated to any disclosure which he may have made. Even if the employee himself is unconvinced, a professional adviser will be reluctant to recommend the making of an application for interim relief at the employee’s cost if it is quite clear that it is not going to succeed.