Does the 'likely to succeed' test for interim relief only apply to the reason for the dismissal?
No, it applies to all the elements of a claim that the Claimant has to prove, held the EAT in Hancock v Ter-Berg.
Mr Ter-Berg brought an unfair dismissal claim, as well as an application for interim relief. Dr Hancock asked for the interim relief hearing to be postponed as they disputed Mr Ter-Berg's employment status and wanted another hearing to determine that issue before the interim relief hearing took place. The tribunal refused, deciding that in answering whether it was 'likely' that Mr Ter Berg's claim would succeed, they also had to determine whether it was likely that he would establish his status as an employee.
Dr Hancock's appeal against the order for interim relief was dismissed. Upholding the tribunal, Mr Justice Choudhury said:
"The Tribunal will clearly need to consider the likely outcome of the eventual determination of the complaint. The provision [for interim relief does not preclude a] Tribunal from having regard to the merits of other elements of the claim aside from the reason for dismissal. Indeed, if it were not to have regard to such matters at the interim relief stage, then it would not be considering the likely outcome on determination of the complaint (but only part of it)...a full determination of employee status would require disclosure, witness statements and a substantive hearing at which witnesses would be questioned and cross-examined. To convene such a hearing, even on an expedited basis, would lead to substantial delays in the hearing of an interim relief application. Indeed, the intended interim nature of that hearing would be substantially undermined, particularly if the preliminary issue is itself the subject of any subsequent appeal."
Thanks to Matthew Jackson of 10 KBW for preparing this case summary.