EAT states absence of interim relief for discriminatory dismissals violates Article 14

Chris Milsom

In a landmark decision, the Employment Appeal Tribunal in Steer v Stormsure Limited has ruled that the absence of interim relief protection for discriminatory dismissals amounts to a violation of Article 14 ECHR.

The Claimant, represented by Chris Milsom and funded by the EHRC, argued that the failure to confer interim relief protection for dismissals amounted to a contravention of the Equality Act 2010 was unlawful. In particular, the absence of the remedy was said to breach ECHR rights in addition to the EU principles of non-discrimination, effectiveness and equivalence (in comparison to complaints of dismissal on the grounds of whistleblowing where interim relief is available). The Claimant sought a purposive construction of Equality Act 2010 so as to confer the remedy of interim relief and in the last resort horizontal direct effect. The value of interim relief has been heightened in the wake of the COVID-19 pandemic as a consequence of delays experienced in the ET system and the long-term effects of unemployment.

The appeal was heard on an expedited basis since it raised complex questions of EU law and the potential declaration of EU-derived rights. As such the EAT was compelled to reach a decision before the expiry of the EU-transition period.

In a comprehensive judgment, the EAT gave important guidance on the procedure and practical advantages of interim relief. Whilst finding that an action of dismissal on the grounds of whistleblowing was truly comparable, the EAT found that there was no breach of the principle of equivalence. Nor were the other EU principles contravened.

However, the EAT concluded that there was a breach of Article 14 ECHR read together with the Article 6 right to a fair trial. There was a valid “other status” namely those seeking to pursue a complaint of discriminatory dismissal. Since the status concerned the enforcement of fundamental rights a heightened standard of justification was required. Whilst the EAT had granted the Government Legal Department leave to intervene it had opted not to do so. As such there was no discernible legitimate aim which could justify the absence of interim relief protection.

The EAT concluded that the duty of purposive construction imposed by s.3 HRA 1998 could not go so far as to confer the remedy of interim relief. As such it granted leave to appeal to the Court of Appeal which may make a declaration of incompatibility; it has also granted leave to consider whether the EAT had fully complied with its duty under s3 HRA 1998.

This is a significant appeal. For the first time in 45 years the disparity between the remedies available for discriminatory dismissals and those for comparable unlawful reasons has been called into question. It is hoped that the CA will be able to complete the picture if a legislative remedy is not devised as part of the forthcoming Employment Bill. In either event questions will continue to be asked as to whether the principal remedy for discriminatory dismissals of compensation after the event is fit for purpose.