Discrimination – interim relief
Interim relief is a powerful weapon in the employment tribunal’s toolbox. An employee can only ask for interim relief in dismissal claims relating to trade union, health and safety activities and whistleblowing. If an employee shows that there is a ‘pretty good chance’ that they will win their claim, the employment tribunal can make an order for their reinstatement (to their old job), reengagement (to an equivalent role) or simply for their contract to continue, with pay but without working, until the full hearing. It is a powerful tool because it essentially reverses the dismissal pending the final hearing.
In Steer v Stormsure, the employee had been employed for only a few months before she was dismissed. She claimed her dismissal was sex discrimination and an act of victimisation. She brought discrimination claims and requested interim relief in relation to her discriminatory dismissal. The employment tribunal said it did not have the jurisdiction to grant interim relief in discrimination cases. The employee appealed to the EAT. The EAT said that the lack of interim relief in discrimination cases appeared to breach article 14 of the European Convention on Human Rights (the prohibition of discrimination) and article 6 on the right to a fair trial. They said the difference in remedy between whistleblowing and discrimination claims was not justifiable. However, the EAT did not have the power to change the law so they dismissed the appeal but granted permission for the employee to appeal to the Court of Appeal.
The Court of Appeal did not agree. The right to a fair trial under article 6 related to procedural fairness and the integrity of a country’s judicial system, not the content of its national laws. The fact that the majority of sex discrimination claims were brought by women did not mean that the lack of interim relief in sex discrimination claims constituted different treatment based on sex. If that were the case, a comparison could be drawn between all kinds of litigation brought by equal numbers of men and women and sex discrimination claims. The Court also said that there were many advantages to the procedures and remedies available in discrimination cases when compared with whistleblowing dismissals, such as the discretion to extend time on a just and equitable basis, the more favourable shifting of the burden of proof and the injury to feelings award in discrimination cases. As a package, it was no less favourable than for whistleblowers. The Court went further and said that if less favourable treatment had been established, limiting interim relief would be justified anyway for a variety of reasons including protecting and encouraging whistleblowers and to avoid placing additional burdens on employers.
This decision will be music to the ears of employers. There are currently only around 150 applications for interim relief each year, and most don’t reach a hearing. If the remedy were extended to discrimination claims, there would be a deluge of applications which would test the resources of both employers and the tribunal system. The Court of Appeal showed that there are plenty of advantageous aspects to a discrimination claim. Discrimination claimants can’t have their cake and eat it.