Is the power to grant an interim relief order available in discrimination claims?
No, held the Court of Appeal in Steer v Stormsure.
Interim relief is a remedy available in certain trade union and whistleblowing dismissal cases, where a Claimant dismissed in the last 7 days can obtain an order for ‘continuation of employment’, where they continue getting paid by their ex-employer if they can show a high likelihood that they will win their automatic unfair dismissal claim at a full hearing. Interim relief hearings are infrequent, very powerful and (for us barristers) great fun.
The Court of Appeal has held that the ability to make an interim relief application does not extend to Equality Act claims. English law does not generally keep contracts of employment in force against the wishes of either party. The argument that the absence of interim relief in discrimination claims breached Article 14 of the European Convention on Human Rights was rejected. As Lord Justice Bean stated:-
“42. ….The reason why a claimant in a discrimination case cannot claim interim relief is because she has not brought one of the small and select group of substantive claims in which Parliament has conferred jurisdiction on the ET to grant interim relief. 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.”
The Court of Appeal also thought that extension of interim relief to discrimination claims would be a matter for parliament, not the courts - see paras 59 and 62, where it commented that “One of the least satisfactory features of the ET system is that an unfairly dismissed claimant whose case is fought to a finish has no interim remedy available, but must wait many months for a hearing and an order for compensation. In many cases this causes serious hardship, and justice delayed is justice denied. One way to reduce the frequency of such injustices would be to devote greater resources to the ET system. Another would be to make some form of interim relief, not necessarily exactly on the s 128 model, available for all types of unfair dismissal; a third would be to make it available but only in cases of unfair dismissal said to involve discrimination. But these are not decisions for this court to make.”
Comments