Summary: Do Tribunals have the power to grant interim relief for discrimination claims?
No, but the current absence of interim relief is probably unlawful, held the EAT in Steer v Stormshore Ltd available here.
Background: Interim relief is where an order is made by the Tribunal for the continuation of the claimant’s employment (including wages) pending the final hearing and decision. Tribunals can make such order where it decides that the employee’s claim is ‘likely to succeed’ (i.e. has more than just a reasonable prospect of success). The wages 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 relief is currently available only in automatic unfair dismissal claims, where an employee alleges that the principal reason for their dismissal is whistleblowing, trade union membership or certain employee representative activities.
To date, there is no equivalent remedy for dismissals on the grounds of discrimination. However, the below case suggests that this may change.
Although interim relief applications have traditionally been rare, the ever-growing backlog of Tribunal claims and greater difficulty finding new employment, mean such applications increasing in popularity. This trend looks set to continue; particularly if interim relief is extended to discriminatory dismissal claims.
Facts: The employee, Mrs Steer, brought Tribunal claims for sex discrimination and/or victimisation following her dismissal. She requested interim relief to allow her to continue in her employment for the time it took for the case to be heard. The Tribunal refused her application for interim relief on the basis of lack of jurisdiction.
The employee appealed to the EAT on the basis that the right to interim relief in discriminatory dismissal claims should be read into the Employment Rights Act 1996. She argued this was required by European Law in particular requirement for equal treatment and/or the European Convention on Human Rights (“ECHR”). The Equality and Human Rights Commission funded the appeal.
The arguments based on European Law were dismissed, but the EAT found that the claimant had made out a breach of Article 14 (prohibition of discrimination) of the ECHR. The EAT considered whether whistleblowing and discriminatory dismissal claims are analogous and whether the difference in treatment in regards to access to interim relief can be justified. The EAT held that the difference could not be justified.
However, the EAT had no power to grant a declaration of incompatibility under the Human Rights Act 1998 or provide any relief. Therefore the EAT dismissed the appeal but granted leave to appeal to the Court of Appeal so it could consider whether to grant the declaration.
Implications: We wait to see if the Court of Appeal decides that the current position in UK law (that there is no right to apply for interim relief in discriminatory dismissal claims) is incompatible with the ECHR. If so, it is likely that the relevant legislation will be changed to make interim relief available in discrimination cases. This would provide discrimination claimants with the potential to continue working and earning. It could also provide 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 wages for what could be a lengthy period until the full hearing (with no ability to recover those sums).
We’ll be sure to update you on the Court of Appeal’s decision once it becomes available.