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Employment Law Update – Interim Relief in Discrimination Cases

On 28 October 2020 we wrote about the benefits of interim relief and the rules on how you can claim it.

We noted however that this was only available in very limited circumstances, i.e. in whistleblowing cases. This was recently challenged in the case of Steer v Stormshore Ltd UKEAT/0216/20 AT which explored whether it should also be available in discrimination cases.

“A recent ruling in the Employment Appeals Tribunal may have a significant impact on the law surrounding claims for interim relief”

Ms Steer was employed by Stormshore Ltd and around four months into her employment she complained that she had been subjected to sexual harassment. However, she felt that this was not properly investigated. She therefore put in a request to work from home which was approved but she was requested to install monitoring software onto her devices and they also reduced her hours due to childcare commitments. Ms Steer claimed constructive dismissal and that the dismissal was direct sex discrimination and/or victimisation because she had raised a grievance. She made a claim for interim relief but the Tribunal said it had no jurisdiction to hear this part of the claim and so she appealed to the Employment Appeal Tribunal (EAT).

The EAT held that the absence of interim relief in discrimination cases is probably unlawful. It was felt that the “difference between whistleblowing and discrimination has not been justified” and “no legitimate aim has been advanced for the difference in treatment.” This therefore engaged Article 14 (prohibition of discrimination) of the European Convention of Human Rights (ECHR) because the issue falls within Article 6 ECHR (right to a fair trial). In other words, not being allowed to claim interim relief in a discrimination case is discrimination in itself.

Although the EAT could declare the absence of interim relief in discrimination cases unlawful, they did not have the power to interpret the Equality Act 2010 (the legislation making discrimination unlawful) to include interim relief. They were also not permitted to grant a declaration of incompatibility under the Human Rights Act 1998. Therefore, Ms Steer has been granted permission to appeal to the Court of Appeal to seek such a declaration. Essentially this means that the EAT feel that the way the law currently is, is unlawful. They believe that interim relief should be allowed in Discrimination cases. However, they do not have the power to do anything about it which is why they have allowed Ms Steer the opportunity to appeal to the Court of Appeal which does have the power to grant such a declaration and prompt change.

The effect of this appeal, if successful, would be that interim relief could also be awarded in discrimination cases. This would be a significant development in an area that is currently very restricted. It would financially help Claimants substantially while they go through the Tribunal process and wait for their case to be heard. . The Government would  thenbe expected to amend the legislation accordingly. The same rules would apply with regard to the 7-day time limit for lodging an application and the test for awarding interim relief would remain that the case must have a “good chance of success”.

In anticipation of the Court of Appeal granting a declaration of incompatibility in 2021, now may be the time to begin putting forward claims for interim relief in Discrimination cases. Therefore, it is important that you seek legal advice as soon as you are dismissed and you believe you have a claim under the Equality Act 2010. An award of interim relief can be hugely beneficial to a claimant, especially at a time where there is increased delay in the time between lodging a claim and the final hearing.

If you would like to speak to a solicitor regarding a potential Discrimination claim, please get in touch with a member of our Employment Team.