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What Now for Interim Relief in Claims of Discrimination and Victimisation-Related Dismissals?

In December 2020, the Employment Appeal Tribunal (“EAT”) handed down its judgment in Steer v Stormsure Ltd UKEAT/0216/20/AT (V), which held that the failure of Parliament to grant a right to claim interim relief in claims of discrimination/victimisation dismissals was incompatible with Articles 6 and 14 of the European Convention of Human Rights (“ECHR”).

However, on appeal, the Court of Appeal (“CoA”) have confirmed that the absence of interim relief in discrimination claims is not incompatible with the ECHR. For the background to the case, please read our previous news alert here.

In this alert, Partner Merrill April takes a closer look at the CoA proceedings and what the outcome of the appeal means for the future of interim relief in discrimination claims.

In brief: what is interim relief?

The right to claim interim relief is available in certain types of automatically unfair dismissal cases involving whistleblowing or trade union membership, however, it is not currently available for discrimination claims. Although applications for interim relief are rare, this remedy can be very beneficial for a claimant because a tribunal can order an employer to continue employing the employee or, if it is unwilling to do so, to continue paying them full pay until the case is finally determined.

The CoA held in this case that the fact that interim relief is not available for discrimination claims is not a breach of Article 14 of the ECHR (prohibition of discrimination).

Court of Appeal Proceedings

Ms Steer appealed to the CoA, with the ECHR’s support. Ms Steer relied on the ECHR to argue that there was a breach of Article 14 when read together with Article 6 (the right to a fair trial) and Article 8 (the right to respect for private and family life).

Article 14

The CoA agreed with the EAT that the fact that a whistleblowing claimant can claim interim relief, whereas an individual claiming sex discrimination cannot, does not in itself amount to sex discrimination. Any whistleblower (male or female) who is dismissed can make an application for interim relief, and any discrimination claimant who is dismissed (male or female) cannot.

Ms Steer was unable to establish all of the four elements that case law requires to demonstrate that differential treatment amounts to a 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 CoA held that Ms Steer fell at the first hurdle. The CoA also 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 for which Parliament has conferred jurisdiction on the Employment Tribunal 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.” Therefore, no breach of Article 14 had occurred.

Article 6

In contrast to the EAT, the CoA considered that Ms Steer’s 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 in this instance.

Article 8

The Court considered whether Article 8 was engaged and was willing to assume that it did. However, even on that basis, there was no breach of Article 8, when read in conjunction with Article 14.

The CoA also considered that the differential treatment in this case was not on the ground of “other status”. From the statistics provided to the CoA, the overwhelming majority of claimants in sex discrimination claims are women. However, the CoA held that this did 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.

Furthermore, and whilst not binding, the CoA also considered whether the difference in the available remedies could constitute less favourable treatment of a claimant claiming discrimination; but decided it did not, because there were other advantages in discrimination claims in comparison to whistleblowing claims, for example, the discretion to extend time on a just and equitable basis for bringing discrimination or victimisation claims and awards for injury to feelings. Even if it did amount to less favourable treatment, the CoA held it would be objectively justified.

What does this mean?

Despite the CoA’s finding, it did acknowledge the hardship that can be caused to claimants due to delays in the tribunal system. The CoA suggested the introduction of some form of interim relief for all types of unfair dismissal claim, or for unfair dismissals involving discrimination, in order to reduce the frequency of that injustice. However, it concluded that it was not for the Court to decide this point, but a matter for Parliament. It was particularly noted in the judgement, and considerable weight was given to the fact, that Parliament had had many occasions to make interim relief available to claimants dismissed for discriminatory reasons, but had chosen not to.

Whilst many eagerly anticipated the outcome of this case, to see whether there would be a substantial change made to the law, the position remains the same, as confirmed by the CoA, that interim relief is not available in discrimination claims.

If you are an employer facing an interim relief application relating to whistleblowing claims connected with claims of discrimination or victimisation and would like to discuss the defence of such claims and the protection of your business, or any other questions arising from this alert, or for specific legal advice on particular circumstances, please contact our Partner Merrill April, who specialises in employment and partnership issues for multinational employers, senior executives, partnerships and partners.

Read our Little Book of Employment Law here.

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