UK: EAT raises possibility of interim relief remedy for discriminatory dismissal claims

[PLEASE NOTE THIS RULING HAS NOW BEEN OVERTURNED ON APPEAL]

Currently interim relief is only available where an employee alleges that the principal reason for their dismissal is whistleblowing, trade union membership or certain employee representative activities; it is not available in discrimination cases - yet.

If a tribunal decides that the employee's claim is 'likely to succeed' (ie, has more than just a reasonable prospect of success), the tribunal can order the employer to continue the employee's contract and remuneration until the claim is finally determined (even if the employer is not willing to let them carry on working). The monies paid are taken into account when calculating compensation for a successful claim, but do not have to be repaid if the claim ultimately fails.

The claimant in Steer v Stormsure Limited argued that the absence of interim relief prevented there being an effective remedy for discrimination claims equivalent to other similar domestic rights (as required by EU law principles) and/or was contrary to the European Convention on Human Rights, in particular the right to a fair trial without discrimination based on various specified grounds or any 'other status' unless any difference is justified.

The Employment Appeal Tribunal rejected the former argument based on EU law principles, but found that the lack of interim relief was discrimination based on the 'status' of wishing to bring a discrimination claim.  As the Government had not intervened in the case, there was no evidence available as to the reason for the difference in the availability of interim relief and the private employer was unable to show justification.  A breach of the European Convention on Human Rights was therefore held to have been established.

The EAT felt unable to interpret the Equality Act 2010 to provide an interim relief remedy and, as it does not have power to grant a declaration of incompatibility, the case was dismissed,  However, permission was given to appeal the case to the Court of Appeal, which does have the power to grant a declaration of incompatibility.  Presumably the Government will seek to intervene and justify the difference at this stage;  if it fails to do so and a declaration is made, the Equality Act would then need to be amended.  This would provide discrimination claimants with a powerful new weapon to encourage employers to settle claims, given the costs of defending an interim relief application and the risk of having to continue paying the claimant for what could be a lengthy period until the full hearing, without any ability to recover those sums.

Although interim relief applications have traditionally been rare, it has been suggested that there could well be an uptick in the current circumstances, given the ever-growing backlog of tribunal claims, greater difficulty finding new employment, and the scope for whistleblowing claims based on breaches of Covid-19 workplace health and safety obligations.  The EAT in this case commented that, given the far greater numbers of discrimination cases than whistleblowing cases, extending the remedy to discriminatory dismissal claims could potentially lead to a much larger number of interim relief claims in future.

UPDATE June 2021: the Court of Appeal has now dismissed the appeal, ruling that the status of being a litigant in a particular type of case is not a protected 'status' and that the lack of interim relief as a remedy in discrimination cases does not breach the European Convention on Human Rights.