Lack Of Interim Relief In Discrimination Cases

• Published date: 06 July 2021
• Subject Matter: Employment and HR, Discrimination, Disability & Sexual Harassment, Employment Litigation/ Tribunals, Employee Rights/ Labour Relations
• Law Firm: Trowers & Hamlins
• Author: Ms Emma Burrows and Nicola Ihnatowicz

The Court of Appeal has held in Steer v Stormshore Ltd that the absence of an interim relief remedy for employment discrimination claims was not incompatible with Article 6 (the right to a fair trial), Article 8 (the right to respect for private life) and Article 14 (prohibition on discrimination) of the European Convention on Human Rights.

Under Article 14 the difference in treatment must be on the ground of a protected characteristic or "other status", and the claimant and the person who has been treated differently must be in analogous situations.

Ms Steer brought an employment tribunal claim alleging discriminatory dismissal and/or victimisation and made an application for interim relief. The tribunal held that it had no jurisdiction and Ms Steer appealed to the Employment Appeal Tribunal (EAT). The EAT held that the absence of an interim relief remedy in discrimination cases appeared to be unlawful under Articles 6, 8 and 14. The difference between whistleblowing claims, where interim relief is available, and discrimination claims, where it is not, was not justifiable. As the EAT had no power to grant a declaration of incompatibility with section 3 of the Human Rights Act 1998, and it could not interpret the Equality Act 2010 to read in a right to apply for interim relief in discrimination or victimisation dismissal cases it granted permission to appeal to the Court of Appeal.

The Court of Appeal held that the case did not fall within Article 6 as the Article is concerned with procedural fairness rather than the substantive content of domestic law. Although the Court conceded that the right to a private life under Article 8 was engaged, it concluded that there was no infringement under...