Fri 25 Jun 2021

Position on availability of interim relief in discrimination claims clarified

The Court of Appeal has confirmed that the absence of interim relief in discrimination claims is not incompatible with the ECHR

Interim relief can be sought by a claimant in the employment tribunal only in certain automatically unfair dismissal claims.  It must be sought within seven days of dismissal and, where successful, results in the employment tribunal ordering the employer to continue employing the employee until their case is heard.  If the employer will not employ the employee, it will be ordered to continue paying their salary.  Interim relief can only be applied for in limited circumstances as provided for under s128 of the Employment Rights Act 1996.  An application can be made where the reason (or principal reason) for the dismissal is either (i) union membership or activity; (ii) whistleblowing; or (iii) activities as a H&S or working time representative, a pension trustee or as an employee representative for the purposes of collective redundancies or TUPE.  Applications for interim relief are few and far between - approximately 150 per year - and when one is made it is often unsuccessful.

In Steer v Stormsure Limited the claimant made an application for interim relief when bringing a discrimination claim.  Discrimination not falling within the claims listed in section 128 of ERA, the employment tribunal found they did not have jurisdiction to grant the application and it was refused.  However, before the EAT she argued that the right to apply for interim relief should be read into the Equality Act 2010 or alternatively the EAT should declare the Equality Act incompatible with her rights under the European Convention on Human Rights ("ECHR").  The EAT found that the claimant had made out a breach of Article 14 (prohibition of discrimination) of the ECHR.  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 the difference in treatment in regards to access to interim relief cannot be justified. 

However, the EAT found it could not read words into the Equality Act to allow interim relief, nor did it have the power to grant a declaration of incompatibility under the Human Rights Act 1998.  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 Secretary of State of International Trade and the Minister for Women and Equalities was joined to the proceedings for the appeal.

The Court of Appeal dismissed the appeal. In this case the claimant was unable to establish all of the four elements that case law sets out are needed to demonstrate that differential treatment amounts to violation of Article 14.  The first of those elements is that the circumstances of the case must fall within the ambit of the ECHR right and to that extent the claimant fell at the first hurdle.  The Court held that  "The reason why a claimant in a discrimination case cannot claim interim relief is because she has not brought one of the small and select group of substantive claims in which Parliament has conferred jurisdiction on the ET to grant interim relief. The fact that a particular remedy is available in litigation of type A, but not of type B, does not constitute discrimination against the claimant in a type B case on the ground of her status as a type B claimant."  No breach of Article 14 had occurred.

Despite this finding, the Court did acknowledge the hardship that can be caused to claimants due to delays in the tribunal system.  It suggested that introduction of some form of interim relief for all types of unfair dismissal claim or for unfair dismissals involving discrimination could reduce the frequency of that injustice.  However, it concluded that it was not for the Court to decide whether these options should be utilised, that was a decision for Parliament. 

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