EET: interim relief whistleblowing change may “create a perfect storm”

Interim relief in whistleblowing cases

In Passey v Tufton Management Ltd (26/59) (10.09.26), EET Chairman Douglas Stewart has provided guidance on interim relief in whistleblowing cases.

The Complainant in Passey is seeking compensation for alleged unfair constructive dismissal and automatic unfair dismissal because of making an alleged protected disclosure.

Her entitlement to do so arises under s 118A of the Employment Act 2006.

This new provision came into being in April 2025. It provides:

“Interim relief pending determination of complaint

(1) An employee who presents a complaint to the Tribunal that, —

(a) he has been unfairly dismissed; and

(b) the reason (or if more than one the principal reason) for the dismissal is that the employee made a protected disclosure, may apply to the Tribunal for interim relief.

(2) The Tribunal shall not entertain an application for interim relief unless it is presented to the Tribunal before the period of seven days immediately following the effective date of termination (whether before, on or after that date).

(3) The Tribunal shall determine the application for interim relief as soon as practicable after receiving the application.

(4) The Tribunal shall give to the employer not later than seven days before the date of the hearing a copy of the application together with notice of the date, time and place of the hearing.

(5) The Tribunal shall not exercise any power it has of postponing the hearing of an application for interim relief except where it is satisfied that special circumstance [sic] exist which justify it in doing so.”

The Chairman outlined the logistical issue(s) (at §§ 6-8):

“6. Under these new provisions, if the Complainant succeeds…, then she is either re-engaged or reinstated in her previous employment or otherwise treated as an employee suspended on full pay until the ultimate Hearing.

7. This procedure has the capability to create a perfect storm. Under the statute the Complainant must make the application for Interim Relief within 7 days of dismissal. That sets the tone for the urgency / immediacy…

8. On receipt of the application for Interim Relief, it is the obligation of the Tribunal to fix a date for a Hearing as soon as practicable – again, introducing the need to assist the Complainant to get the matter heard without undue delay. That creates a practical problem for the Clerk and for me because of the logistical difficulties of finding an available date and time to meet the immediacy of the process.”

At § 9, the Chairman referred to Presidential Guidance (Applications for Interim relief) issued by the Presidents of the Employment Tribunals of England and Wales and Scotland, in June 2026.

This noted (at § 4) a recent significant surge in English applications for interim relief, largely in protected disclosure cases, often indicating the use of AI.

The present proceedings had been filed on 6th September 2026. The Chairman set a date for the interim relief hearing (22nd September 2026), with submissions required by 18th September 2026. However, these dates were said not to be practical for Counsel for the Respondent, who sought a short postponement.

The Chairman considered whether the grounds advanced amounted, under s 118A(5), to a “special circumstance”:

13. It is self-evident that this new provision enabling Interim relief applications is there for the benefit of the Complainant and of no advantage and perhaps considerable disadvantage to a Respondent. I therefore have to be mindful that a Respondent must  not play tactical games to postpone a Hearing. However, consistent with Rule 7 and the overriding objective in the Employment & Equality Tribunal Rules 2018, I have to be fair and even-handed to both parties…

15. This required consideration of whether the submissions advanced by [Counsel for the Respondent] amounted to adequate a special circumstance [sic] to justify changing the date. I considered that, viewed as a whole, this was a special circumstance situation, particularly taking into account that the extension of time required was only one week”.

The Chairman decided to postpone the interim relief hearing to 29th September 2026.

Reaching his decision, the Chairman referred to Lunn v Aston Darby Group Limited UKEAT/0039/18/BA (26.02.18), where Judge Eady QC held (see § 18) that it was inappropriate to interpret “special circumstances” as meaning “exceptional circumstances”.

As to the burden of proof, referring to the Presidential Guidance, Chairman Stewart also added (at § 22):

“… the [Presidential] Guidance is that, in granting an interim relief application, the Tribunal must be satisfied that the Complainant had “a pretty good chance of success” at the final Hearing – Taplin v C Shipham Limited [1978] ICR 1068. The test is not whether it is more likely than not that the ultimate claim would succeed. It is to be regarded as something nearer to certainty than mere probability”.

For useful further reading in this area, see:

• Select Committee of Tynwald on Whistleblowing Policy Implementation, Report 2025/26 (§§ 111-112 & Recommendation 9) (05.26);
• Council of Ministers’ Response (06.26) (pp. 11-13);
• Coren Law, Time Limits in the EET – update on recent case-law (26.01.26); and
• M&P Legal, Manx whistleblowing claimants can now seek emergency tribunal relief (09.07.26).

Note for practitioners: The introduction of interim relief to whistleblowing cases, via s 118A Employment Act 2006, means that applications can cause logistical issues, both for a Respondent and the Tribunal itself. A postponement application requires a “special circumstance”, but that is not the same as an “exceptional circumstance”. The EET must be satisfied that the Complainant has “a pretty good chance of success” at the final hearing.

Disclaimer: professional advice should be sought before applying any information in a given case.

For advice on litigation relating to Isle of Man civil procedure, or to Isle of Man employment and equality law, contact Coren Law.

See also Coren Law’s Isle of Man civil procedure portal: Click On | Coren Law.

Photo credit: Brandon Morgan