Lack of interim relief in discrimination cases
The Court of Appeal has held in Steer v Stormshore Ltd that the absence of an interim relief remedy for employment discrimination claims was not 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.
Under Article 14 the difference in treatment must be on the ground of a protected characteristic or "other status", and the claimant and the person who has been treated differently must be in analogous situations.
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 Employment Appeal Tribunal (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. As the EAT 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 granted permission to appeal to the Court of Appeal.
The Court of Appeal held that the case did not fall within Article 6 as the Article is concerned with procedural fairness rather than the substantive content of domestic law. Although the Court conceded that the right to a private life under Article 8 was engaged, it concluded that there was no infringement under Article 8 when read with Article 14. The fact that interim relief is available to a dismissed whistleblower, but not to a discrimination claimant does not constitute discrimination on the ground of sex, and the status of being a litigant in a particular type of case does not constitute a relevant "other status" for the purposes of protection under Article 14.
Take note: The Court of Appeal's decision means that interim relief will not be available for discrimination claims. There will be no change to the law. Although interim relief is a useful tool for a dismissed employee, who will remain on full pay until the claim is finally disposed of, the Court of Appeal noted in its decision that, at most, 150 applications are filed in a year.
Chris Milsom, a barrister from Cloisters Chambers, who acted in this case will be joining us at our Trowers Tuesdays, Including the offensive, on 20 July. You may be interested in the other sessions in our month of inclusivity too, Ageing workforce and Driving inclusivity after the pandemic. A recording of our first session on the Menopause can be found here.