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EAT rules that non-availability of interim relief in discrimination cases breaches Article 14 ECHR

Interim relief is a remedy available in the Employment Tribunal which can result in a dismissed employee being reinstated or re-engaged by their employer; or, more commonly, put back on the payroll until the outcome of a final hearing decision.

Interim relief is not commonly sought in the Employment Tribunal and can only be applied for in limited circumstances, such as where an employee claims automatic unfair dismissal on the grounds of whistleblowing. However, the number of applications for interim relief is on the rise, and a judgment handed down by the Employment Appeal Tribunal (EAT) in December 2020 could lead to the availability of interim relief in cases where employees are dismissed for alleged discriminatory reasons.

Steer v Stormsure Limited UKEAT/0216/20/AT

Ms Steer brought a claim in the Employment Tribunal against her employer, Stormsure Limited, alleging that her dismissal amounted to sex discrimination and victimisation. Ms Steer pleaded in the alternative that she had been dismissed for making a protected disclosure so had been automatically unfairly dismissed.

Ms Steer made an application for interim relief in relation to the sex discrimination and victimisation claim as well as the whistleblowing claim.

The Employment Tribunal refused to allow Ms Steer to apply for interim relief in relation to the discrimination/victimisation claim on the basis that it had no jurisdiction to do this. Ms Steer appealed to the EAT.

 The EAT held that the difference in treatment between individuals who wish to bring a claim for automatic unfair dismissal on the grounds of whistleblowing and those who wish to bring a claim for dismissal for alleged discriminatory reasons cannot be justified and no legitimate aim had been advanced for such difference in treatment. The absence of interim relief in discrimination cases was therefore a breach of Article 14 of the European Convention on Human Rights, which prohibits discrimination. However, the EAT acknowledged that it did not have the power to issue a declaration of incompatibility under the Human Rights Act 1998 and could not interpret the Equality Act 2010 to read in a right to apply for interim relief, as this would amount to the EAT taking on a legislative role.

Significance

The EAT has granted Ms Steer permission to appeal to the Court of Appeal. A declaration of incompatibility could be issued for breach of Article 14 and an amendment made to the Equality Act 2010 to include a right to apply for interim relief in discrimination/victimisation claims arising from dismissals.

Interim relief applications can have a detrimental impact on employers if they are required to pay a claimant from the point of dismissal up until the final hearing. This money cannot be claimed back, even if the claimant ends up losing at the final hearing. Employers must respond quickly if an application is made and seek legal advice if they are unsure on how to proceed.

Employers need to ensure that all staff receive appropriate training on discrimination and victimisation in the workplace and have clearly drafted policies to deal with these issues.

For more information, please contact the Employment Team.

 

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