Employment Appeal Tribunal considers whether the inability to grant interim relief in discrimination claims is unlawful
Steer v Stormsure Limited (UKEAT/0216/20/AT)
Mrs Steer (the Claimant) was employed by the Respondent from 12 March 2020 until 15 July 2020. During her employment, she alleged that she was subjected to sexual harassment from a fellow employee and that the Respondent failed adequately to protect her from this. To safeguard herself from this treatment, she requested to work from home away from the employee in question. She claims that the Respondent acted unfavourably to this request because of unwarranted sex-based assumptions relating to her ability to juggle child-care with her work. The Respondent subsequently reduced the Claimant's hours to 60% of her equivalent full-time hours because of her childcare responsibilities.
The Claimant claims the unilateral change to her hours amounted to an express dismissal or, in the alternative, a constructive dismissal. She subsequently presented a claim in the Employment Tribunal (ET) in which she alleged that her dismissal amounted to sex discrimination and/or victimisation on the ground that she had done a protected act, contrary to the Equality Act 2010.
Unusually, she sought “interim relief” as a remedy which would have the effect of continuing her employment until the ET gave its final judgment.
When is interim relief ordered?
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 ET has the power to grant an employee interim relief. The relief may be an order that the employer continue employing the employee (or, if it is unwilling to employ them, to continue paying their salary) until the case is determined.
This is a valuable benefit because it can take a number of months before a claim is finally determined (or even longer in complex cases, especially when there is a backlog of claims before the ET). This is particularly critical now given the delays faced in the ET system which have been exacerbated by the pandemic. An order of interim relief means that a claimant has a financial cushion whilst s/he is waiting for his/her claim to be heard. It is particularly valuable because, even if his or her claim ultimately fails, the employee will not have to repay the monies received. It also means that the employer has an ongoing financial commitment, which may mean that it is more amenable to settlement.
Importantly for the facts of the present case, there is no equivalent remedy for dismissals on the grounds of discrimination and interim relief has no statutory relevance to discrimination.
What did the ET decide?
The ET refused the Claimant's application for interim relief on the basis that it did not have the jurisdiction to grant it.
The Claimant appealed this decision to the Employment Appeal Tribunal (EAT) on the basis that the right to interim relief in a discrimination claim should be read into the Equality Act 2010. It was submitted that the Equality Act 2010, in not including a right to interim relief, was incompatible with the EU Charter and the European Convention of Human Rights (ECHR), in particular Article 14 (prohibition of discrimination). It was put forward that discrimination claims are sufficiently similar to automatic unfair dismissal claims, in that they have uncapped compensation, require no minimum length of service to bring and allow compensation for injury to feelings. To permit interim relief for the latter and not for discrimination claims was contrary to the principles of effectiveness, equivalence and equal interest and/or the ECHR.
What did the EAT decide?
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. In the absence of the Respondent putting forward any such justifications, or input from the Government, the EAT held that the Respondent had been unable to satisfy the burden of justifying the difference in treatment for Article 14 purposes.
As such, the EAT found that the Claimant had successfully made out a breach of Article 14 of the ECHR. However, the EAT did not have the power to grant a declaration of incompatibility under the Human Rights Act 1998 and, as such, had no choice but to dismiss the Claimant's appeal. Appeal to the Court of Appeal was granted.
Therefore, in the coming months, the Court of Appeal will consider whether a declaration of incompatibility should be granted. In doing so, it will likely scrutinise whether there is a justified reason for the different remedies permitted for discrimination claims. The Government will also likely be invited to comment on why automatic unfair dismissal claims allow for interim relief but discrimination claims do not. It is noteworthy that the EAT stated that it "was not saying that the difference in treatment is incapable of justification. Rather… the Respondent has been unable to satisfy the burden of justifying the difference in treatment".
What does this mean for employers?
This case, should the Court of Appeal grant a declaration of incompatibility, could have a significant impact on discrimination law within the United Kingdom. The Equality Act 2010 would likely be amended to permit interim relief in some form, which may have the potential to require employers to continue to employ or pay an employee who is claiming discriminatory dismissal throughout proceedings. Given the length of complex discrimination cases, this could incur significant costs for employers on the receiving end of such an order.