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In brief

The Court of Appeal has ruled that the lack of an interim relief remedy for discrimination dismissal claims does not breach the European Convention of Human Rights (ECHR).


Key takeaways 

The Court of Appeal has confirmed that interim relief is not a remedy that is available to claimants bringing claims of discriminatory dismissals.  

For advice or to discuss what this means for you and your business, please contact your usual Baker McKenzie contact. 

In more detail

Interim relief is available for certain dismissal claims such as whistleblowing claims but not discriminatory claims. Where available, it can be a powerful tool for claimants as it ensures they can continue receiving their pay and benefits until their claim is determined. For more information about the legal and factual context of this case, please click here for our alert on the Employment Appeal Tribunal’s (EAT) decision. 

Court of Appeal proceedings and decision

Ms. Steer appealed to the Court of Appeal with the ECHR’s support. The Secretary of State for International Trade and the Minister for Women and Equalities joined the proceedings. Ms. Steer relied on the ECHR to argue that there was a breach of Article 14 (protection from discrimination) when read together with Article 6 (the right to a fair trial) and Article 8 (right to respect for private and family life). 

Lord Justice Bean gave the leading judgment.

Article 6 ECHR: In contrast to the EAT, the court considered that the claim did not fall within the scope of Article 6. Article 6 is concerned with the procedural fairness and integrity of a state’s judicial system, and not with the substantive content of national law. The lack of interim relief for discriminatory dismissal claims is a provision of national law, therefore Article 6 was not engaged. 

Article 8 ECHR: The court considered that whether Article 8 was engaged was less clear cut but it was willing to assume that it did. However, even on that basis, there was no breach of Article 8 when read with Article 14.

Article 14 ECHR: The court agreed with the EAT that the fact that a whistleblowing claimant can claim interim relief whereas a sex discrimination claimant cannot, does not amount to sex discrimination. Any dismissed whistleblower (male or female) can make an application for interim relief. Any dismissed discrimination claimant (male or female) cannot. 

The court also considered that the differential treatment was not on the ground of “other status”. Whilst the overwhelming majority of claimants in sex discrimination claims are women, this does not mean that the unavailability of interim relief in such claims, which is available in whistleblowing claims, constitutes a difference of treatment on the ground of sex or some form of indirect discrimination against women. Otherwise there would need to be a comparison between every form of litigation brought approximately equally by men and women with sex discrimination claims. 

Whilst not binding, the court also commented that the difference in remedies available did not constitute less favourable treatment of the discrimination claimant. It noted that there are a number of other areas where such claimants have an advantage over whistleblowing claimants; for example, in the extended time limit for bringing a discrimination claim where the tribunal considers it just and equitable and/or in the injury to feelings awards available in discrimination claims. There was no less favourable treatment to discrimination claimants when the package was considered  as a whole. 

Even if less favourable treatment had been established, the court considered that it would have been objectively justified. Parliament had had “many occasions” to make interim relief available to claimants dismissed for discriminatory reasons but had chosen not to, and considerable weight was given to that choice.

Steer v Stormsure Limited, Court of AppealĀ 

Author

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

Author

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

Author

Mandy Li is a Knowledge Lawyer in Baker McKenzie London office.

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