If someone is dismissed for blowing the whistle, they can ask a tribunal to grant them interim relief until their substantive claim is heard. The same remedy is, however, not available for discrimination claims and the Employment Appeal Tribunal (EAT) has confirmed in Steer v Stormsure Ltd that it does not have the power to amend the Equality Act 2010, only to interpret it.
Basic facts
After four months of starting work with Stormsure, Ms Steer lodged a complaint that a colleague had subjected her to sexual harassment. After the company failed to investigate her grievance adequately, she asked to work from home to safeguard herself from further harassment. This was eventually agreed but she was then instructed to install screen shot monitoring software which she says was an implicit attack on her integrity and an unjustified intrusion into her private life. Not long after, her working hours were unilaterally reduced to 60 per cent which she said amounted to a dismissal.
She lodged a tribunal claim for unfair dismissal and said that her dismissal amounted to sex discrimination and to victimisation for protected acts (the grievance and the decision to work at home). She also claimed automatically unfair dismissal for making a protected disclosure, contrary to section 103A of the Employment Rights Act 1996 (ERA). She asked the tribunal to grant her interim relief under the ERA (for the whistleblowing claim) as well as the Equality Act (for the discrimination claims). If her claim for interim relief was successful, her employment would be preserved until her claim was decided.
Although a right to claim interim relief is not available in a claim for discrimination and victimisation under the Equality Act (unlike a claim for whistleblowing), Ms Steer argued it should be and that this failure constituted a breach of European law and/or Article 14 when read with Article 6 of the European Convention on Human Rights (ECHR).
Relevant law
Article 14 of the ECHR states that “the enjoyment” of all the rights set out in the Convention “shall be secured without discrimination on any ground” such as sex or any other status.
Article 6 states that everyone has the right to a fair trial within a reasonable time by an “independent and impartial tribunal”.
Article 14 is not a freestanding right and can therefore only be exercised in conjunction with another right under the Convention, in this case Article 6.
Tribunal decision
The tribunal held that it did not have jurisdiction to grant interim relief for the discrimination/victimisation claims. Ms Steer appealed.
EAT decision
Although the EAT rejected her argument that the failure to provide interim relief for discrimination claims was a breach of EU law, it did accept that she was entitled to rely on Article 14 of the ECHR. This was because the issue to be determined came within the ambit of Article 6 in the sense that it related to a judicial remedy (or lack of it in this case) for enforcing a civil right.
No legitimate aim had been advanced by the employer for the different ways in which the remedies for whistleblowing and discrimination claims were treated, not least because the employer, as a private company, was not in a position to know. This was really a matter for government to justify. As it did not intervene in the proceedings or provide any evidence or submissions, no justification defence was made out. As a result, the EAT held that there had been a breach of Article 14 of the ECHR.
However, the EAT refused to introduce the remedy of interim relief for discrimination/victimisation cases resulting from dismissals as this would have required it to go beyond interpreting the domestic legislation in accordance with the ECHR and instead cross the line into making an amendment to the legislation which it was not equipped to do. As the EAT does not have the power to make a declaration of incompatibility under the Human Rights Act 1998, it granted Ms Steer leave to appeal to the Court of Appeal to consider whether to grant a declaration of incompatibility for the breach of Article 14.