Significant Potential Change To Discrimination Law – Availability Of Interim Relief In Discrimination Cases

The Employment Appeal Tribunal (EAT) has found that the lack of availability of interim relief in discrimination cases is probably unlawful – paving the way for the Court of Appeal to consider the matter and for a potential amendment to legislation in due course.

What is interim relief?

Claimants in certain types of Employment Tribunal (ET) claim can seek interim relief as part of their claim. This is an application asking for the Tribunal to order the employer to reinstate or re-engage them, pending the final decision in the ET claim. If the employer is not willing to agree to either, then the Tribunal can make an order that the employment contract is continuing (and therefore the employer will be liable to continue paying the employee until the final decision).

The purpose of interim relief is to preserve the status quo until the full hearing. It can also be used tactically as many employers will not be keen on the idea of having to reinstate an ex-employee while they wait for a Tribunal hearing.

Where is interim relief currently available?

Interim relief is only available where an employee has brought a claim for unfair dismissal and alleges that their dismissal was for one of a number of specified, automatically unfair reasons, including:

• Carrying out health and safety duties;
• Being a working time representative or representative for collective consultation (regarding redundancies or TUPE);
• Being trustee of an occupational pension scheme;
• Having made a protected disclosure (whistle blowing);
• Certain trade union reasons; or
• Relating to the right to be accompanied at disciplinary, grievance or study/training request hearings.

Interim relief is not currently available in discrimination cases.

What has happened in this case?

The EAT has given its judgement in the case of Steer v Stormshore Ltd. In this case, Ms Steer brought claims for discrimination including sexual harassment. She also included an application for interim relief, asking to be reinstated pending the outcome of her case. The Tribunal dismissed the application as it did not have jurisdiction to hear such an application. Ms Steer appealed citing EU law and the European Convention on Human Rights (ECHR).

In his judgement, Mr Justice Cavanagh found that it was unlawful that interim relief was not available in discrimination cases in line with Article 14 of the ECHR (prohibition of discrimination). In particular, the judgement was critical of the differing treatment between those claiming discrimination and those claiming whistle blowing and that this had not been explained.

As this case was heard in the EAT, permission has been given for an appeal to Court of Appeal where a declaration of incompatibility could be granted. If such a declaration is made, the Government is likely to amend the legislation in light of this (i.e. to allow those claiming unfair dismissal connected to discrimination to apply for interim relief).

This will not be affected by Brexit as the issue is incompatible with the ECHR which is separate from EU rules.

Comment

If this change is made, it will be very significant as this could be used by many claimants with discrimination complaints and could mean the Tribunals have to deal with many applications in this regard.

At this stage, we would recommend employers check that they have an up to date Equality policy and that employees and managers are aware of it and have been trained on it.