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In brief

An employment tribunal did not have jurisdiction to grant interim relief (continued employment until the case is decided) to a claimant who alleged their dismissal amounted to unlawful discrimination. The case is expected to be heard by the court of appeal, which will consider whether to issue a declaration of incompatibility between UK law and the European Convention on Human Rights (ECHR).


Key takeaways

  • For now, at least, interim relief remains unavailable to claimants who claim discriminatory dismissals. The ECHR and the Human Rights Act 1998 (HRA) remain in force in the UK and are unaffected by Brexit. If the court of appeal makes a declaration of incompatibility, then the UK government would be likely to change the law in these cases.
  • The government did not intervene in the case to argue any legitimate aim behind the decision not to permit interim relief applications in discrimination cases. As a result, the EAT was unable to find that there was any legitimate aim. If the government intervened in an appeal to the court of appeal, it would be open to that court to find that there is a legitimate aim that justifies this decision.
  • Given the current length of tribunal delays, any successful claim for interim relief is likely to be substantial, and payments made to a former employee under such an order cannot be reclaimed by the employer if the claim is unsuccessful. While interim relief applications are relatively rare at present, any extension to include discriminatory dismissals would greatly increase the number of claims where such applications could be made and employers will therefore be watching the outcome of any future appeal with interest.
  • For further information and to discuss what this development might mean for you, please get in touch with your usual Baker McKenzie contact.

In more detail

Background

Interim relief is available for certain dismissal claims, including those relating to trade union rights, acting as an employee representative in collective consultation processes, certain health and safety activities, and whistleblowing claims. It is an order for either reinstatement or re-engagement of the claimant or, if neither is possible, for the continuation of the employee’s employment (including pay), until the final determination or settlement of the claim. The application for interim relief must be made within seven days of the effective date of termination. The tribunal will only order interim relief where it appears likely that a tribunal will find in the claimant’s favour at the final merits hearing.

The remedies for discrimination and victimisation in the UK are set out in section 124 of the Equality Act 2010. These are a declaration as to the rights of the claimant and the respondent, compensation and an appropriate recommendation that the employer takes certain steps to remove or reduce the adverse effect on the claimant of any matter to which the proceedings relate. Under the Equality Act, there is no right to interim relief.

Facts

Ms Steer was employed by Stormsure Limited for four months, ending on 15 July 2020. She complained of sexual harassment by a colleague, brought a grievance and asked to work from home to protect herself from harassment. After her working hours were unilaterally reduced by 60%, she claimed dismissal or, in the alternative, constructive dismissal. She brought employment tribunal claims on 30 July for sex discrimination and victimisation, as well as for an automatically unfair dismissal for whistleblowing. She also sought interim relief in relation to both her sex discrimination/victimisation and whistleblowing claims.

The employment tribunal listed an interim relief hearing in relation to her whistleblowing claim, but stated it did not have jurisdiction to grant interim relief in discrimination cases. Ms Steer appealed to the Employment Appeal Tribunal (EAT).

EAT proceedings and decision

The EAT held an expedited hearing in order to hear the complex argument on questions of EU law before the EU-UK transition period ended on 31 December 2020. Ms Steer’s arguments relied on both EU law and the ECHR.

Ms Steer argued that EU law requires that there must be effective penalties for breach of the right not to suffer discrimination, and under the EU principle of equivalence, an EU right (such as the right to be protected from discrimination) cannot be afforded less effective remedies than an equivalent domestic right (such as whistleblowing). Secondly, she relied on the ECHR to argue that there was a breach of Article 14 (protection from discrimination) of the ECHR when read together with Article 6 (the right to a fair trial).

The respondent, on the other hand, argued that the current UK remedies for discrimination and victimisation are effective, that damages are sufficient and that the status of a whistleblower and someone who has been discriminated against are different. In any case, detriment claims — whether for discrimination or whistleblowing — do not attract interim relief. Finally, the respondent argued that the ECHR argument relied on too broad a category for a comparator to be possible and the remedy sought (purposive construction of the Equality Act to permit interim relief) would be impermissible judicial legislation.

The EAT found that the lack of interim relief in discrimination claims does not breach the EU law principle of effectiveness because the existing remedies are sufficient. Although there are delays in tribunal proceedings, particularly at present, these do not mean that interim relief is necessary.

A whistleblower’s dismissal was comparable to the dismissal of an employee because of a protected characteristic, but there was no breach of the EU principle of equivalence since, as a whole, the procedures are not less favourable. In addition, remedies for discrimination and victimisation are no less favourable than those in another domestic claim, unfair dismissal. There was no breach of any other fundamental EU principle.

However, there was a breach of Article 14 (protection from discrimination) of the ECHR, when read together with Article 6 (the right to a fair trial). Ms Steer had a valid ‘other status,’ as one of those who seek to bring a claim of discriminatory dismissal. Since this status concerned the enforcement of fundamental rights (the right not to suffer discrimination), a higher standard of justification was required. The EAT had granted the UK government leave to intervene in the case, but it had not done so. Since neither of the parties to the case were in a position to put forward any evidence of a legitimate aim behind the unavailability of interim relief, the EAT was unable to find that there was one which could justify why interim relief is not available in such cases.

Under Section 3 of the HRA, primary and subordinate legislation must be read and given effect in a way that is compatible with the ECHR, but the EAT could not stretch this duty so far as to provide interim relief in discrimination cases.

The EAT cannot make a declaration of incompatibility under the HRA, but the court of appeal does have the power to do so. The EAT granted leave to appeal to the court of appeal not only to consider this, but also to decide whether the Equality Act could in fact be read as including a right to claim interim relief.

It is expected that the government (the Department of Business, Energy and Industrial Strategy) will intervene in any appeal. During the EAT proceedings, Ms Steer was supported by the Equality and Human Rights Commission, who are expected to continue to back her.

Case: Steer v Stormsure Ltd UKEAT/0216/20/AT(V), 21 December 2020

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James Brown is a Knowledge Lawyer in Baker McKenzie's London office.

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Rachel Farr is a Knowledge Lawyer in Baker McKenzie's London office.

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