Is there going to be a fundamental change to discrimination claims?

The Claimant in Steer v Stormsure Ltd UKEAT/0216/20 has tried to persuade Mr Justice Cavanagh that there should be interim relief available for discrimination claims in the Employment Tribunal. The eagle-eyed amongst you will have spotted that section 124 Equality Act 2010, while providing for recommendations and compensation, does nothing for claimants who have lost their job prior to a final hearing. Steer seeks to add that remedy to the statute.

Case so far

The Claimant worked for the Respondent for a little over three months and made a number of complaints that she had been discriminated against, including of sexual harassment. A number of those complaints appear to have been protected acts. A dispute remains as to whether the Claimant has been dismissed or not, but a claim for interim relief was presented within the seven days that would apply for interim relief under Employment Rights Act 1996.

That application for interim relief was rejected on the (not surprising) basis that there was no jurisdiction to do so. The Claimant appealed to the EAT.

Claimant’s case

The Claimant’s arguments in the EAT rely on both European Union Law (“EU”), and the European Convention on Human Rights (“ECHR”). Under EU law, the various directives require that there be “effective, proportionate and dissuasive” penalties for breaches of the right not to be discriminated against. There is also an EU principle of equivalence, in that an EU right cannot be afforded less effective enforcement measures than an equivalent domestic right.

The domestic right not to be unfairly dismissed is protected in specified circumstances, such as relating to health and safety, trade union activities or whistleblowing. Whistleblowing is an equivalent cause of action to victimisation in the Equality Act 2010, and so the failure to provide an equivalent remedy would be a breach of EU law.

Under ECHR, a chose-in-action (effectively a claim that has not yet been decided), is a “possession” for the purposes of article 1 of protocol 1 to ECHR. ECHR prevents a person from being deprived of their possessions unless it is a proportionate means of achieving a legitimate aim. Mrs Steer is entitled to rely on the fact she is a woman for being discriminated against when compared with other categories, such as whistleblowers and trade union members by not having interim relief available.

Respondent’s case

Although the Claimant might be right about the principles of EU law, the current remedies are effective, and it is for member states to determine what remedies are to be permitted. Damages can be an adequate remedy and status as a whistleblower is not truly equivalent to being victimised or discriminated against because of a protected characteristic. There is in any event similar provision in respect of detriments because of whistleblowing and detriments under Equality Act 2010 in that neither attracts interim relief.

So far as the ECHR is concerned, the category relied upon is too broad for there ever to be an analogous situation with any comparators and thereby establish discrimination. The remedy sought is also beyond what the courts can grant under ECHR and EU law as it goes beyond a purposive construction of the statute and extends to judicial legislation.

Decision

The Claimant’s appeal was dismissed. Mr Justice Cavanagh did not accept that the lack of interim relief violated effectiveness (essentially for the Respondent’s reasons), or that discrimination was equivalent to whistleblowing. He did however find that Mrs Steer had “other status” under Article 14 ECHR as being “an individual who wishes to bring a claim of dismissal or victimisation arising from dismissal”.

No legitimate aim was advanced, as the government did not take part (despite being invited), there was therefore no basis on which the difference in treatment between a person wishing to bring a discrimination claim, and a person wishing to bring a whistleblowing dismissal claim, could be justified. Mr Justice Cavanagh did not expressly say he would have granted a declaration of incompatibility if the EAT had the power, but it is apparent that would have been the logical conclusion.

What now?

Permission has been granted to go to the Court of Appeal. It is likely that Mrs Steer will take up her case for a declaration of incompatibility there. It is also likely that the Secretary of State for Business, Energy and Industrial Strategy will seek to intervene, perhaps with negative costs consequences for him at this late stage.

If a declaration is granted, most likely there will be an amendment to Equality Act 2010. There has, to date, never been an outright refusal by any government to act in response to any declaration of incompatibility.

Watch this space!

Matt Jackson