Lack of interim relief remedy for discrimination claims may be unlawful

The Employment Appeal Tribunal has ruled that the absence of interim relief as a remedy for discrimination claims arising from dismissal breaches the European Convention of Human Rights.

What is interim relief?

In some cases of dismissal, including on grounds of whistleblowing and trade union activity, employees can apply to the employment tribunal for interim relief. Interim relief is a valuable remedy as it restores the employee to the payroll pending the tribunal’s decision on their unfair dismissal claim. However, employees wishing to apply for interim relief must act quickly and apply within 7 days of the effective date of termination. A tribunal can only grant interim relief if it considers it likely that the claimant employee will be able to show at the full hearing that the prohibited reason for dismissal (such as whistleblowing or trade union activity) was the reason or principal reason for their dismissal. However, interim relief is not available as a remedy where an employee claims to have been dismissed for discriminatory reasons.

Tribunal rejects interim relief application

In Steer v Stormshore, Mrs Steer brought an employment tribunal claim against her employer, arguing that her dismissal was discriminatory and amounted to victimisation. She applied for interim relief. The tribunal rejected her application as it has no power to grant interim relief in discrimination claims. Supported by the Equality and Human Rights Commission, she appealed to the Employment Appeal Tribunal, arguing that the non-availability of interim relief in discrimination dismissal claims amounts to a breach of Article 14 European Convention on Human Rights (ECHR).

Is lack of interim relief incompatible with the European Convention on Human Rights?

Article 14 ECHR provides that convention rights must be enjoyed without discrimination. Article 6 ECHR provides for the right to a fair trial. The EAT considered this includes the right to access remedies to enforce rights.

Mrs Steer argued that the fact interim relief is available in whistleblowing dismissal claims but not in claims of discrimination arising from dismissal meant she was being discriminated against in terms of the remedies available to her. This was not justified and meant she was not enjoying her right to a fair trial without discrimination. She was being discriminated because she was claiming that her dismissal was discriminatory. 

The Employment Appeal Tribunal agreed, particularly due to the lack of Government intervention to justify why interim relief is not provided as a remedy in the Equality 2010. However, the Employment Appeal Tribunal ruled that it could not interpret the Equality Act 2010 as giving a right to interim relief and it did not have jurisdiction to take any further action.

Appeal to the Court of Appeal?

The Employment Appeal Tribunal gave the employer leave to appeal to the Court of Appeal.  Assuming the employer appeals, the Court of Appeal will consider whether the lack of interim relief breaches Article 14 ECHR and if, so, whether to make a declaration that the Equality Act 2010 is incompatible with the ECHR.  The Government will be entitled to be joined as a party to the proceedings so that it can try to justify why interim relief is not available under the Equality Act 2010.

What does this mean for employers?

The decision has no immediate impact for employers. However, if the Court of Appeal comes to the same conclusion as the Employment Appeal Tribunal, we could see a change to the Equality Act 2010 enabling employees who have been dismissed on discriminatory grounds to apply for interim relief.