Can you get interim relief when claiming discrimination?
Sadly, the short answer is no, as confirmed recently by the Court of Appeal in Steer v Stormsure Ltd
What exactly is interim relief? By making an application for interim relief in the tribunal, a Claimant seeks an order that preserves their employment, at least insofar as pay is concerned which is reinstated, until the tribunal is able to determine the case at a full merits hearing. However, interim relief is only available for automatic unfair dismissal cases for whistleblowing, for trade union activities or membership and/or for activities connected with being a health and safety representative, a pension scheme trustee, a working time representative or an employee representative for TUPE or collective redundancy purposes.
These are not easy applications to pursue and only awarded where a case on the papers is likely to succeed at a full merits hearing – which is often a high hurdle to meet. However, that said, many practitioners have advocated that it should be available in discrimination cases given that these cases often involve what tribunals consider the most egregious treatment of employees.
One line of challenging current legislation has been to argue that the Equality Act 2010 breaches the European Convention on Human Rights by not providing interim relief. This was the argument followed in Steer v Stormsure Ltd but was rejected recently by the Court of Appeal. The Court of Appeal held that Article 6 of the European Convention on Human Rights, which protects the right to a fair trial, was not breached on the grounds that this Article is concerned about procedural fairness not substantive content of domestic law. The Court did assume though that the right to a private life under Article 8 was engaged, but it concluded that there was no infringement when considered together with Article 14, which prohibits discrimination.
The facts of this recent case are as follows: Ms Steer brought claims for sex discrimination and victimisation. She sought an interim relief order, but the tribunal refused to list the case for an interim relief hearing on the grounds that it did not have jurisdiction to order interim relief under the Equality Act 2010. Ms Steer appealed to the EAT, where she argued that the failure to provide interim fell within Article 6 – the right to a fair trial – because it related to access to judicial remedies and that Article 14 had been infringed because those bringing discrimination claims were being treated less favourably to those who claiming unfair dismissal for whistleblowing.
The EAT disagreed, and ultimately decided that it was not possible to interpret the Equality Act 2010 to allow interim relief, since it did not have power to make a declaration of incompatibility under the Human Rights Act. Ms Steer appealed again.
The Court of Appeal said that Article 6 was not engaged because Ms Steer did not have the right to interim relief under national discrimination laws. The court went on to consider whether Article 8 was contravened but held just because a whistleblowing claimant can apply for interim relief and a discrimination claimant could not, this did not constitute discrimination on the grounds of sex.
However, the court has left it open for an appeal to the Supreme Court because it did not address whether a discrimination claimant and whistleblowing claimant could be said to be in an analogous situation, which is a further requirement for Article 14 to be engaged. Ultimately the court when looking at the remedies available for discrimination for claimants held that they were not collectively less favourable than those available to a whistleblowing claimant. And even if there was less favourable treatment, it could be objectively justified under Article 14.
We foresee that this case will be appealed, and it will be interesting to find out the Supreme Court’s take on this increasingly vexed issue. Ultimately, it may come down to legislative change but there is an unfairness that a claimant who has been overtly discriminated against cannot obtain relief to minimise their losses while they are conducting litigation.
Let’s wait and see what happens. Watch this space.
This blog was written by Anita Vadgama, Legal Director for didlaw.