Lack of interim relief in discrimination cases may be in breach of the European Convention on Human Rights
The Employment Appeal Tribunal (EAT) has considered in Steer v Stormshore Ltd that the absence of an interim relief remedy for employment discrimination claims could be incompatible with Article 6 (the right to a fair trial), Article 8 (the right to respect for private life) and Article 14 (prohibition on discrimination) of the European Convention on Human Rights.
Ms Steer brought an employment tribunal claim alleging discriminatory dismissal and/or victimisation and made an application for interim relief. The tribunal held that it had no jurisdiction and Ms Steer appealed to the EAT. The EAT held that the absence of an interim relief remedy in discrimination cases appeared to be unlawful under Articles 6, 8 and 14. The difference between whistleblowing claims, where interim relief is available, and discrimination claims, where it is not, was not justifiable.
The EAT held that it had no power to grant a declaration of incompatibility with section 3 of the Human Rights Act 1998, and it could not interpret the Equality Act 2010 to read in a right to apply for interim relief in discrimination or victimisation dismissal cases. It dismissed the appeal, but granted permission to appeal to the Court of Appeal who would have the power to grant a declaration of incompatibility.
Take note: The EAT noted that if Ms Steer is successful in her appeal, the legal landscape in relation to the remedies available for discrimination and victimisation claims will change significantly. It may be that, in future, interim relief will be available for such claims. In the meantime watch this space!