Highlighting the lack of interim relief available to discrimination claimants

Is interim relief available in Equality Act 2010 claims?

A woman (the claimant in this case) alleged that she was sexually harassed by her colleague and victimised by her employer when she complained about it. As a result she resigned from her employment, claiming that she had been constructively dismissed as a result of her employer’s actions.

She made an application for interim relief while she waits for a final hearing of her claim, but the employment tribunal (ET) rejected her application saying that it did not have jurisdiction to hear it. She appealed to the Employment Appeal Tribunal (EAT) and subsequently to the Court of Appeal.

What is interim relief?
Interim relief in ET claims refers to something that a claimant can ask the tribunal to order to make them more financially secure while they wait for a final hearing of their claim. If you lose your job and make a claim, you might not get a hearing for months (sometimes years). In the meantime you’ll be losing wages if you can’t find another job. So in some cases you can apply to the tribunal to make an order requiring your former employer to reinstate you to your job, reengage you in a different job or to continue your contract so that you, for example, carry on receiving your wages. The employment tribunal will follow a procedure set out in legislation to decide whether an order should be made and if so, what particular form of interim relief should be granted.

However, interim relief of this type is only available in certain unfair dismissal claims. For example, in claims by those who lose their job because they were a whistleblower, or who were dismissed because they were carrying out union activities. It isn’t available if you bring a claim under the Equality Act 2010 alleging, for example, that your dismissal was an act of discrimination, harassment or victimisation.

The ET said that because the Equality Act 2010 does not expressly include a right to interim relief in discrimination cases, they had no power to consider the legal arguments (known as “lack of jurisdiction”).The Claimant appealed to the EAT.

The EAT judge did not accept the Claimant’s arguments in relation to European law. However, the judge did find that the difference in treatment between those who bring a claim in relation to discrimination/victimisation arising from dismissal, and those who bring a claim for automatic unfair dismissal such as whistleblowing, is a breach of Article 14 of the European Convention on Human Rights (ECHR), when read alongside Article 6. Under Article 6, the Claimant has the right to a fair trial which the EAT held includes a right of access to judicial remedies. She also has a right under Article 14 to enjoy the rights set out in the ECHR (including Article 6) free from discrimination. The difference in treatment between the two categories of claimant was discrimination and was not justified.

Although the judge found a breach of the ECHR, he said that an EAT judge cannot make a declaration that the law in the UK is incompatible with the ECHR. It also said that it would be wrong for the EAT to interpret the legislation in a way that would be compatible with the ECHR. It was not equipped to assess the impact of such a decision.

The Claimant therefore appealed to the Court of Appeal to ask them to read extra words into the legislation so that it complies with the ECHR or to grant a declaration of incompatibility. We supported the Claimant’s appeal.

We funded this case because we are committed to ensuring that people in Britain have equal access to the labour market and are treated fairly at work. 

In March 2018 we published a report called Turning the Tables: Ending Sexual harassment at work, and at 3.2 (page 19) of that report we recommend that interim relief should be available for harassment and victimisation claims.

We funded the appeals to the EAT and the Court of Appeal.

The Court of Appeal overturned the EAT’s decision. It held as follows:

• In order to establish a violation of Article 14 ECHR, it is necessary to establish the following elements:
  • The circumstances must fall within the ambit of an ECHR right (but a breach of that right does not have to be proven);
  • The difference in treatment must have been on the ground of one of the characteristics listed in Article 14 or an "other status";
  • The claimant and the person who has been treated differently must be in analogous situations;
  • The difference in treatment must be less favourable treatment of the claimant; and
  • The defendant will be unable to establish that the difference in treatment was objectively justified.

Ambit

• Article 6 is concerned with the procedural fairness and integrity of a state’s judicial system, not with the content of its national law. The Claimant had no right to interim relief in UK law, so her complaint that the ET cannot award interim relief does not fall within the ambit of Article 6.
• The position in relation to Article 8 is less clear cut. Article 8 is not engaged by the mere fact of a dismissal. However, the consequences of a particular dismissal may make article 8 applicable (for example, the effect of a dismissal on a person’s reputation). The court was prepared to assume for present purposes that the case falls within the ambit of Article 8.

Characteristic/status

• The fact that a dismissed claimant in a whistleblowing case can claim interim relief, whereas a dismissed claimant in a sex discrimination case cannot, does not amount to discrimination on the grounds of sex. Any dismissed whistleblower, whether male or female, can make an application for interim relief. Any discrimination claimant who has been dismissed, whether male or female, cannot do so.
• Where the case does not fall within one of the characteristics listed in Article 14 such as sex, discrimination must be by reference to some other status comparable with those expressly mentioned. The status of a person making a claim where interim relief is not available is not comparable.

Analogous situations

• The court did not attempt to give a “yes” or “no” answer to the question of whether the Claimant’s situation and that of a dismissed whistleblower are analogous. The court thought it preferable to ask whether, to the extent that they are, the difference in treatment is justified. 

Less favourable treatment

• The lack of interim relief in discrimination claims cannot be viewed in isolation. Viewing a discrimination claim as a whole package, the claimant was not treated less favourably than her whistleblowing comparator. Some aspects of discrimination claims are more favourable than whistleblowing claims and vice versa.

Justification

• Any difference in treatment was justified. Introducing a right to interim relief in discrimination claims would force very substantial changes to the way in which employment tribunals work. It saw no reason why any well advised claimant would not apply for interim relief, which would inevitably mean that delays in hearings would increase.

Therefore, the appeal failed and there is no right to interim relief in Equality Act cases.

The case did not result in the introduction of interim relief in discrimination claims as had been hoped.

It has, however, highlighted the lack of interim relief available to discrimination claimants and the problems associated with this.