Not a relief!
Should employees claiming discrimination be entitled to claim interim relief?
The remedy of interim relief is potentially very valuable to a claimant. If it is granted the individual can be reinstated into their previous role or re-engaged into in a different job on no less favourable terms pending the outcome of the full hearing (with the employer’s agreement). Alternatively, if the employer refuses, the Tribunal can make an order for continuation of the employment contract which gives the employee the right to continue to receive their salary and benefits and accrue continuity of service pending a full hearing, without being obliged to do any work during this period. In addition, even if the claimant is ultimately unsuccessful at the final hearing they do not have to repay the sums received between the original dismissal and the final hearing. Also, as an application triggers substantive work on both parties within a short period of time, it places significant pressure on the employer to try to settle.
However this remedy is currently only available in very limited circumstances when an individual alleges they have been automatically unfairly dismissed as a result of certain protected reasons including union membership or union activities, making a protected disclosure (whistleblowing), or carrying out other protected activities such acting as an employee representative for health and safety or collective consultation, or as a pension scheme trustee. Interim relief is therefore not currently a remedy that is available in connection with a discrimination claim and this has recently been challenged in the Employment Appeal Tribunal.
Mrs Steer alleges that she was constructively dismissal by Stormshore Limited and that this amounted to sex discrimination and/or victimisation contrary to the Equality Act 2010. She made an application for interim relief which was rejected by the Employment Tribunal because they had no jurisdiction under current law to grant it. She appealed to the EAT arguing that taking a different approach to interim relief in discrimination and victimisation cases as opposed to whistleblowing claims was a breach of the EU law principles of effectiveness (domestic law must provide an effective remedy) and equivalence (procedures and remedies must be no less favourable than those which apply to similar actions of a domestic nature). She also claimed it violates other fundamental principles of EU law including various articles in the EU Charter of Fundamental Rights and various provisions in the European Convention on Human Rights (ECHR) including the right to a fair trial (Article 6), the right to respect for private life and prohibition on discrimination (Article 14). For these reasons she argued that the right to claim interim relief must be read into the Equality Act 2010 by the Tribunal. Mrs Steer was supported by the Equality and Human Rights Commission (EHRC).
The EAT did not find there had been a breach of either the effectiveness or equivalence principles or indeed any violation of fundamental principles of EU law. However it considered that it is a breach of Articles 6 and 14 of the ECHR (which prohibits discrimination in the enjoyment of the rights and freedoms set out in the ECHR) and found no basis for the difference in treatment between someone claiming discrimination and someone bringing a whistleblowing claim. The EAT decided that it was not possible to apply a conforming interpretation to the Equality Act 2010 as it would require extensive changes and therefore, as the EAT has no power to make a declaration of incompatibility, it granted leave for Mrs Steer to appeal this point of law to the Court of Appeal which does hold such power.
If the Court of Appeal agrees and makes a declaration of incompatibility it is likely that the Equality Act will be amended to allow the remedy of interim relief, which would significantly change how discrimination and victimisation claims are brought and what remedies are sought. Particularly given the length of time currently taken between lodging a claim and reaching a final hearing, there is no doubt interim applications will become more commonplace. It would be used both as a tactic to try to reach early settlement and as a way of trying to secure ongoing income for individuals who may otherwise be out of work for some time and have to wait many months for any other form of compensation. Watch this space!