EAT ruling spurs renewed focus on interim relief

A decision from the Employment Appeal Tribunal last month, about whether interim relief should be available in discrimination claims, has highlighted the significant benefits of this remedy for claimants, particularly while waiting times for employment tribunal hearings continue to increase.

The decision questions why interim relief is available in certain kinds of unfair dismissal cases, but not for Equality Act claims. It can be a particularly valuable remedy, because a successful application will require an employer either to reinstate the employee, or to continue to pay their current salary until a full hearing can take place. Even if the claim is ultimately unsuccessful, there is no obligation to pay this money back (though to obtain this remedy in the first place the employee must satisfy the tribunal at the interim stage that the claim is “likely” to succeed).

Interim relief was introduced for union-related dismissals in the mid 70s, and was extended to the dismissal of whistleblowers some twenty years later. It is also available where the reason for dismissal is linked to the activities of health and safety representatives, as well as in a number of other cases where a dismissal is regarded as automatically unfair. However, it appears that the Government has never considered extending this remedy to dismissal–related discrimination claims.

In this case, the claimant argued that failure to extend interim relief to discrimination claims was in beach of EU anti-discrimination law and, in addition, the Human Rights Act. The argument in relation to EU law failed, but the EAT considered that the design of our current employment framework put the UK Government in breach of the Human Rights Act. Essentially this was because the Government had not advanced any justification for extending this remedy to some classes of litigants, but denying it to others. This amounted to an infringement of the claimant’s rights under Article 6 Human Rights Convention to receive a fair trial without discrimination because of protected characteristics or “other” status.

The EAT has no jurisdiction to make a declaration that the relevant employment legislation is incompatible with the Human Rights Act, so the case now goes to the Court of Appeal for it to consider whether such a declaration should be made. We expect the Government, which failed to take up an invitation to intervene in the EAT, to advance its arguments on justification at the second time of asking.

As things stand, therefore, the decision has not changed how the law operates, and it is difficult to predict how the Court of Appeal will respond to the Government’s arguments on justification, since these were not rehearsed before the EAT.

Whatever the final outcome, this litigation is likely to stimulate a renewed focus on interim relief. Some will argue that it makes little sense to privilege whistleblowers over employees who are able to demonstrate that they have been dismissed for discriminatory reasons. However, any change to the law in this area is likely to require the intervention of Parliament.

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