Is interim relief in discrimination and victimisation claims about to become available?

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English employment law currently allows unfair dismissal claimants in a limited number of circumstances to apply for an interim remedy, such as temporary re-employment on the same terms or re-engagement in a different role with no less favourable terms, prior to the full hearing. However, interim relief is not available in discrimination and victimisation cases.

In Steer v Stormshore Ltd, Ms Steer argued that her dismissal by Stormshore Ltd involved discrimination on the grounds of sex and/or constituted victimisation.

Ms Steer applied for interim relief. After the Employment Tribunal held that it had no jurisdiction, Ms Steer appealed to the Employment Appeal Tribunal (EAT), with the support of the Equality and Human Rights Commission.

Ms Steer accepted that there was no right to apply for interim relief under the Equality Act 2010 but argued that this right must be read into English law “because this is required by European Law and/or by the European Convention on Human Rights”.

The EAT did not find UK law to have breached European law, because it already provides an effective remedy where victimisation or discrimination claims are substantiated.

However, the EAT held that not providing an interim remedy in discrimination cases appeared to be unlawful under the European Convention on Human Rights (ECHR), including the Article 6 right to a fair trial, the Article 8 right to respect for private life, and the prohibition on discrimination in Article 14.

Interim relief is available for claimants who have been dismissed because of whistleblowing. The EAT found that it was not justifiable to treat discrimination claims differently. No legitimate aim was argued to explain the difference in treatment; the Government had chosen not to intervene in the proceedings, and because Stormshore was a private employer it was unable to put forward any justification.

The Human Rights Act 1998 is the domestic legislation which gives the ECHR effect in the UK. Under this legislation, the Court of Appeal has the power to make a declaration that the current law is incompatible with the ECHR. It then falls to Parliament to remove the incompatibility. Here, the EAT dismissed Ms Steer’s appeal, but granted her permission to appeal to the Court of Appeal.

It will be interesting to see the outcome of Ms Steel’s appeal. As noted by the EAT, this case has the potential to significantly change “the legal landscape regarding the remedies that are available in discrimination and victimisation cases”, should Ms Steel’s appeal succeed.