Is the lack of interim relief as a remedy in discrimination cases incompatible with the European Convention on Human Rights (ECHR)?

What is interim relief?

Interim relief is a remedy that could be available to employees, under Section 128 of the Employment Rights Act 1996, who are pursuing an unfair dismissal claim against their employer in connection with whistleblowing, union membership or acting as a representative (e.g. in connection with health & safety). If an application is granted, the Tribunal could order re-instatement, or grant an order for the continuation of the employee’s contract up until the date of the final hearing. Under the latter, an employee will continue to receive their salary and benefits whilst not being obliged to carry out their role and any salary paid cannot be reclaimed by the employer, even if the employee is unsuccessful in their claim.

Steer v Stormshore – the facts

Following her dismissal, Ms Steer, who had been employed by Stormshore Ltd for around 3 months, brought a claim alleging that her dismissal had been discriminatory and/or amounted to victimisation. Ms Steer made an application for interim relief, asking to be returned to her role, however, the Tribunal held that it did not have jurisdiction to consider the application and Ms Steer therefore appealed to the EAT. The EAT held that interim relief not being available as a remedy in discrimination claims appeared to be unlawful under the ECHR and that the difference between whistleblowing claims and discrimination claims, was not justifiable. In particular, that EAT held that the unavailability of interim relief as a remedy appeared to be unlawful under Article 6 (right to a fair trial) and Article 14 (prohibition on discrimination).

What next?

The EAT held that it did not have jurisdiction to grant a declaration of incompatibility with section 3 of the Human Rights Act 1998 and that it would not be right for it to read the Equality Act 2010 (EqA) in such a way as to provide a right to apply for interim relief in discrimination or victimisation cases. The appeal was therefore dismissed; however, Ms Steer was granted permission to appeal to the Court of Appeal who does have the power to grant a declaration of incompatibility.

What does this mean?

If Ms Steer’s appeal to the Court of Appeal succeeds, this will significantly change the landscape regarding remedies available for claims made under the EqA.

Watch this space….