Employment Law Cases

Interim relief and discrimination claims

Steer v Stormsure Ltd

While the lack of interim relief for discriminatory dismissals does not breach EU law, it does violate the European Convention on Human Rights.

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).

EAT decision

Ms Steer was partially successful.

In a highly technical judgment, the EAT 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.

Link to judgment: https://www.bailii.org/uk/cases/UKEAT/2020/0216_20_2112.html

Comment

As the European Convention on Human Rights will be unaffected when the transition period ends on 31 December 2020 this is potentially a very important case. If the Court of Appeal make such a declaration then the government will have to change the law to allow interim relief in discrimination cases and this could be a game changer. It is important however to remember that interim relief is not automatically granted - the tribunal has to be persuaded at an urgent and relatively short hearing that the claimant is ‘likely’ to succeed with their claim and this is quite a high bar.