22nd January, 2021
Should an Employee be able to claim for Interim relief in Discrimination claims?
This case of Steer v Stormsure Limited has the potential to significantly alter the law relating to remedies for discrimination claims and is one for employers to “watch”.
The case concerns an employee who worked from March to July 2020. During this time Steer (the Claimant) alleges that she was subjected to sexual harassment and inappropriate conduct relating to her sex from colleagues and claims this was further exacerbated by the employer failing to adequately protect her from this harassment. In July 2020 the claimant filed a grievance which she contends was not fully investigated.
Upon a request to work from home to avoid the sexual harassment she stated that this was opposed because of “unwarranted sex-based assumptions relating to juggling work and childcare responsibilities”. The Respondent eventually allowed the working from home arrangement but requested a monitoring application to be installed on her device. This was deemed by the Claimant to be an attack on her integrity and an unjustified intrusion into her private life.
The ‘final straw’ came when the Claimant’s working hours were reduced by 60% because of her childcare responsibilities. The Claimant resigned and claimed dismissal on grounds which she said amounted to sex discrimination and victimisation. The Claimant sought an unusual remedy for “interim relief”, ie. she requested an order for her employment to continue until the Tribunal decided on her case. This is an unprecedented case as the relevant legislation for interim orders does not apply to discrimination cases and as a result, the Employment Tribunal dismissed her application as it was not a remedy she was legally entitled to under the Equality Act.
The Claimant appealed on the grounds that an interim relief order should include a right for Claimants to apply for interim relief and that it was not compatible with the European Charter of Human Rights (ECHR) in that member states should provide a remedy for discrimination which is effective and similar or equivalent to rights available for other claims. The EAT noted that interim relief is available in whistleblowing claims which the EAT considered to be similar, in that for both whistleblowing and discrimination claims there is no required length of service, no cap on the remedy and injury to feelings can be awarded as compensation. However, the Employment Rights Act 1996 allows interim relief as a remedy in whistleblowing cases, but there is no equivalent for discrimination claims under the Equality Act.
The EAT concluded that the absence of interim relief as a remedy in discrimination claims was unlawful but the EAT has no power to change the legislation. Leave to appeal has been granted to the Court of Appeal for this to be considered. If there needs to be a change in legislation it is likely it will require submissions from the Government on its justification for allowing interim relief in whistleblowing cases and not discrimination cases.
The ramifications of this judgement were very clearly outlined by Justice Cavanagh “If the appeal succeeds, the legal landscape regarding the remedies that are available in discrimination and victimisation cases will change significantly”.
The potential impact of this judgement cannot be understated, the ability to request interim relief in cases of discrimination could open new avenues of claim and recompense to employees bringing claims at the Employment Tribunal.
If you or your business would like advice in relation to Discrimination claims, Whistleblowing or any other Employment law related matter please contact Debbie Coyne.
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