Employment Law Cases

Interim relief and discrimination claims

Steer v Stormsure Ltd

The power to grant an interim relief order is not available in discrimination claims.

Interim relief is available in cases of dismissal on the grounds of trade union activity and whistleblowing - but no equivalent remedy exists for dismissals on the grounds of discrimination. Its value as a remedy for employees (as it restores the employee to the payroll pending a tribunal decision) has been heightened in the wake of the COVID-19 pandemic because of delays experienced in the tribunal system.

Background

Ms Steer had been employed for about four months when she complained she’d been subject to sexual harassment and that this had been inadequately investigated. She asked to work from home which her employer reluctantly agreed to, but then it asked her to instal monitoring software and cut her working hours due to her childcare commitments. Ms Steer claimed this was a dismissal and/or a constructive dismissal. At tribunal she also claimed that her dismissal was direct sex discriminatory and/or victimisation that she had done a protected act (the grievance). She claimed entitlement to interim relief under the Employment Rights Act 1996 and the Equality Act 2010. A tribunal said it had no jurisdiction to hear the interim relief claim. The case proceeded quickly to the EAT because it raises complex questions of EU law and there was a need to reach a decision before the expiry of the EU-transition period (31 December 2020). Ms Steer argued that the disparity in protection breached EU law and art. 14 of the European Convention on Human Rights (ECHR) – prohibition of discrimination – read together with art. 6 (the right to a fair trial).

Ms Steer was partially successful at the EAT. It rejected Ms Steer’s arguments on EU law but held that the absence of interim relief did breach art. 14 of the ECHR. However, the EAT held that it could not go so far as to interpret the Equality Act 2010 to include interim relief – this would cross a boundary and step into the realms of quasi-legislation, something it was not prepared to do. Nor was it allowed to use the Human Rights Act 1998 to grant a declaration of incompatibility (whereas the Court of Appeal can). As such, it granted Ms Steer leave to appeal to the Court of Appeal to seek such a declaration.

Court of Appeal decision

The appeal was dismissed.

In a highly technical judgment, the arguments in the Court of Appeal centred on whether certain articles of the ECHR could help Ms Steer’s case, specifically art. 6, 8 and 14. It held that they could not. Moreover, the court also thought that the extension of interim relief to discrimination claims would be a matter for Parliament, not the courts.

Link to judgment: https://www.bailii.org/ew/cases/EWCA/Civ/2021/887.html

Comment

Employers and the Tribunal Service will be heaving a collective sigh of relief at this decision. Although the hurdle for an employee claiming interim relief is a relatively high one – in that they have to persuade a tribunal at a brief hearing that they are likely to succeed in their claim, to allow interim relief in discrimination would add another layer of litigation and cost. It would also mean that the backlog of tribunal cases would have built up further as tribunals are obliged to give interim relief hearings priority over other cases and schedule urgent hearings within days.