Is there power for an employment tribunal to grant interim relief for a discrimination claim?
No, but the absence of interim relief is probably unlawful, held the EAT in Steer v Stormshore Ltd.
Ms Steer worked for the Respondent for a little over 3 months and made a number of complaints that she had been discriminated against, including of sexual harassment. She made an application to the Employment Tribunal for interim relief, asking to be returned to her job pending the final decision on her claim.
The tribunal decided it had no jurisdiction to do so and Ms Steer appealed. On appeal she argued that there were breaches of European (EU) Law and the European Convention on Human Rights (ECHR). Mr Justice Cavanagh rejected the arguments on EU law, but decided that the absence of interim relief in discrimination cases was unlawful. He said:
“Article 14 [prohibition of discrimination] is engaged, because the matter in question comes within the ambit of Article 6 [right to a fair trial], as it relates to judicial remedies for the enforcement of civil rights. The Appellant has an 'other status' for the purposes of Article 14, namely that of being an individual who wishes to bring a claim of dismissal/victimisation arising from dismissal.
"The difference [between whistleblowing and discrimination] has not been justified. No legitimate aim has been advanced for the difference in treatment. The Respondent, being a private employer, is not in a position to say why the difference exists, and the Government did not respond to an invitation to intervene in this appeal… The burden rests with the Respondent to justify the difference and, through no fault of its own, it has been unable to do so.”
The EAT decided that it could not interpret the Equality Act 2010 to include interim relief, and was also not permitted under the Human Rights Act 1998 to grant a declaration of incompatibility (whereas the Court of Appeal can). Ms Steer was therefore given permission to appeal to seek that declaration.
The government has never completely refused to act in response to a declaration of incompatibility, so expect it to seek to intervene in the Court of Appeal and amend the legislation if it loses. Because the Claimant won on the ECHR, this judgment will not be affected by Brexit, in whatever form, on 1st January 2021.
Thanks to Matthew Jackson of Albion Chambers for preparing this case summary.