Can employees obtain interim relief when bringing discrimination claims against an employer?
Steer v Stormsure Limited  EWCA Civ 887
Interim relief is rarely sought and even more rarely granted. In certain types of automatically unfair dismissal cases, primarily whistleblowing claims and trade union membership claims, an Employment Tribunal (ET) has the power to grant an employee interim relief. The relief may be an order that the employer continues to employ the employee (or, if it is unwilling to employ them, to continue paying their salary) until the case is determined. It is not available in Equality Act claims, for example, those alleging discrimination.
On 19 January 2021, we published an article setting out the Employment Appeal Tribunal's (EAT) judgment in the case of Steer v Stormsure Limited (here). In its judgment, the EAT considered whether those who wish to bring a claim for whistleblowing, and are entitled to apply for interim relief, are in an analogous situation to someone wishing to bring a claim of discriminatory dismissal, and, if so, whether the difference in treatment could be justified.
The Claimant argued that the difference in protection for discrimination cases breached the European Convention on Human Rights (ECHR) on the prohibition of discrimination and on the right to a fair trial. As such, the EAT was asked to consider whether the difference in remedy between whistleblowing and discrimination claims was justifiable and compatible with the ECHR.
However, the EAT considered it did not have the power to make a ‘declaration of incompatibility’ under the Human Rights Act 1998, which requires UK legislation to be interpreted in a way which is compatible with the ECHR. Nor was it prepared to extend interim relief to discrimination cases. As a result, it dismissed the appeal but granted permission for the employee to appeal to the Court of Appeal to rule on the incompatibility point.
What did the Court of Appeal decide?
The Court of Appeal has now held that the ability to make an interim relief application does not extend to discrimination claims. It was confirmed that it is only available for a small and select group of substantive claims in which Parliament has conferred jurisdiction on the ET to grant interim relief.
The judgment noted that "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.” It was also stated that the decision to make such an extension would be a matter for Parliament, not the courts.
What can employers take from this?
The outcome to this case was highly anticipated as, had the Claimant been successful, the decision could have meant a substantial change in employment law.
However, this is a welcomed judgment for employers. Whilst the threshold for claimants to be granted interim relief is a relatively high one, the inclusion of Equality Act claims in the select claims that are eligible for interim relief would have the potential to add another layer of litigation and cost to already complex claims.
It has also been suggested that this decision would mean the backlog of ET cases would increase even further, as tribunals are obliged to give interim relief hearings priority over other cases. Given that the ET has already suffered from additional backlog due to Covid-19 restrictions, any further delay would not be desirable.