Thu 17 Jun 2021

EAT finds inability to grant interim relief in discrimination claims unlawful

Permission to appeal to the Court of Appeal has been granted UPDATE: The Court of Appeal has dismissed the appeal finding interim relief is not available for discrimination claims.

Interim relief is rarely sought and even more rarely granted in the employment tribunal.  It is where an order is made by the tribunal for the continuation of a claimant's employment pending the final hearing.  It is available only in automatic unfair dismissal claims as specified in section 128 of the Employment Rights Act 1996.  Those claims are where it is alleged the reason (or principal reason) for a dismissal is either (1) union membership or activity; (2) making a protected disclosure (whistleblowing); or (3) activities as a health and safety representative, a working time representative, a pension scheme trustee or an employee representative for the purposes of collective redundancy or the TUPE Regulations.  There is no equivalent remedy for dismissals on the grounds of discrimination.

In Steer v Stormsure Limited the claimant alleged sex discrimination and/or victimisation following her dismissal.  The employment tribunal refused her application for interim relief on the basis of lack of jurisdiction.  While the claimant accepted that there was no right to apply for interim relief contained in the Equality Act 2010 ("the Act"), she appealed to the EAT on the basis that the right should be read into the Act.  She argued this was required by European Law - in particular by way of the principles of effectiveness, equivalence and equal treatment - and/or the European Convention on Human Rights ("ECHR").  The Equality and Human Rights Commission funded the claimant's appeal.

The arguments based on European Law were dismissed but the EAT found that the claimant had made out a breach of Article 14 (prohibition of discrimination) of the ECHR.  The EAT stated it was appropriate to consider whether those who wish to bring a whistleblowing claim - and who can apply for interim relief - are in an analogous situation to someone wishing to bring a claim of discriminatory dismissal or victimisation arising from a discriminatory dismissal, and whether the difference in treatment in regards to access to interim relief can be justified. 

The EAT held that the difference could not be justified.  It acknowledged that as a private employer the respondent was not in a position to say why the difference in treatment of these two types of claim exists.  The burden of justifying the difference in treatment lay with the respondent and through no fault of its own had been unable to do so.  The UK Government had been invited to intervene in the claim but had not done so. 

However, while the Court of Appeal has the power to grant a declaration of incompatibility under the Human Rights Act 1998, the EAT does not.  The EAT could not therefore grant any relief for the breach of Article 14.  As a result the EAT dismissed the appeal but granted leave to appeal to the Court of Appeal so they could consider whether to grant the declaration. 

The case was expedited to guarantee a judgement before the end of the Brexit transition period.  However, because the claimant succeeded under the ECHR and not under EU law, the judgement will not be affected by Brexit.  The UK Government may seek to intervene in the Court of Appeal.  If the Court does make a declaration of incompatibility then it is likely that the relevant legislation will be changed to make interim relief available in discrimination cases.  Watch this space. 

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