Steer v Stormsure [2021] EWCA Civ 887; June 11, 2021

Implications for practitioners

The Court of Appeal held that the absence of interim relief for discrimination claims arising from dismissal did not breach the prohibition of discrimination under Article 14 of the European Convention of Human Rights (ECHR). In reaching this decision, the Court of Appeal referred to the four stage approach for establishing an Article 14 infringement, set out in R(Stott) v Secretary of State for Justice [2020] AC 51.

Employment Tribunal

The claimant ‘SS’ was dismissed by the respondent, ‘SL’ and brought discrimination and victimisation claims under the Equality Act 2010 (EA) and a whistleblowing dismissal claim under the Employment Rights Act 1996 (ERA). When lodging her claims, SS submitted an interim relief application for the discrimination, victimisation and whistleblowing claims.

The Employment Tribunal stated it did not have jurisdiction to consider interim relief for the discrimination and victimisation claims, only the whistleblowing claim.

Employment Appeal Tribunal

SS appealed against the Employment Tribunal’s refusal to consider interim relief for the discrimination/victimisation claims arising from dismissal, arguing that the failure to afford access to interim relief for EA claims breached various provisions of European law. SS also asserted a breach of Article 14 ECHR (prohibition of discrimination), read in conjunction with certain substantive convention rights including Article 6 (right to fair trial) and Article 8 (right to respect for private and family life).

For the purposes of Article 14, SS relied on the core status of sex, asserting that female claimants would be disproportionately affected by the lack of interim relief for discrimination-dismissal cases. In the alternative, SS claimed ‘other status’, namely the status of being an individual who wishes to bring discrimination/victimisation dismissal claims.

SS was successful in asserting the Article 14 breach on the grounds of ‘other status’. The Employment Appeal Tribunal (EAT) had to consider whether there were differences between discrimination/victimisation dismissal claims and whistleblowing dismissal claims which justified the availability of interim relief for one and not the other. However no justification had been put forward – the government had not intervened to provide justification and SL could not provide justification as a private employer. The EAT therefore upheld the breach of the ECHR in the absence of justification being provided.

The EAT decided it could not give the EA a conforming interpretation to resolve this breach under s3 of the Human Rights Act 1998 (HRA); it had no power to make a declaration of incompatibility and was therefore unable to provide a remedy for this breach. The appeal was dismissed, but SS was granted permission to appeal so that the Court of Appeal could consider whether there was a breach and, if so, the appropriate remedy.

Court of Appeal

SS appealed to the Court of Appeal submitting that the EAT was wrong in finding that she could not rely on the core status of sex for the Article 14 breach. In the alternative, SS relied again on the ‘other status’ of being a discrimination-dismissal claimant.

The Court of Appeal referred to the four-stage approach to establish a breach of Article 14, set out in the R(Stott) v Secretary of State for Justice [2020] AC 51 judgment:

1. Firstly, the circumstances must fall within the ambit of a Convention right.
2. Secondly, the difference in treatment must be on the grounds of a characteristic listed in Article 14, or another ground qualifying as ‘other status’.
3. Thirdly, the appellant and the comparator (in this case a whistle-blower dismissal claimant) must be in analogous situations.
4. Fourthly, there must be a lack of objective justification for the difference in treatment.

Addressing the Stott elements, the Secretary of State, acting as an interested party, submitted that Article 14 was not breached as this case did not fall within the ambit of a substantive Convention right; SS was not treated differently on any of the prohibited grounds within Article 14; SS was not in an analogous situation with a hypothetical dismissed whistle-blower, and the absence of interim relief remedy in discrimination claims arising from dismissal was justified.

On justification, the Secretary of State submitted the legitimate aims of:

1. Protecting and encouraging claimants who take steps regarding collective rights or public interest
2. Avoiding additional burden on employers
3. Maintaining a fair balance within and between different sets of rights and remedies for different claims
4. Maintaining an efficient and effective ET system

The Court of Appeal held that SS’ complaint that the ET could not order interim relief for discrimination claims arising from dismissal did not fall within the ambit of Article 6. Referring to Matthews v Ministry of Defence [2003] 1 AC 1163, the Court of Appeal stated that Article 6 concerns procedural fairness and integrity of a judicial system, not the content of national law. However, the CA accepted that the case fell within Article 8.

The Court of Appeal agreed with the EAT that SS could not rely on the status of sex to engage Article 14. The Court of Appeal stated that any dismissed whistle-blower, whether male or female, could apply for interim relief, and no discrimination claimant, whether male or female, could. The Court of Appeal also found that an Article 14 breach could not be advanced on the basis of discrimination-dismissal claimants being ‘other status’. The Court of Appeal held that a particular remedy not being available in one type of litigation but being available in another did not constitute discrimination. The appeal therefore failed.

Nonetheless, the Court of Appeal continued to assess the remaining elements of the Stott approach. The Court of Appeal did not find there to be less favourable treatment, stating that the interim relief remedy should not be viewed in isolation. Instead, the sets of remedies available for discrimination claims and whistleblowing claims should be viewed as ‘packages’, and when viewing the remedy packages in their entirety, it was not correct that discrimination claimants were treated less favourably. The Court of Appeal listed examples of more favourable treatment for discrimination claimants, including the ‘just and equitable’ discretion to extend time limits (as opposed to the ‘reasonably practicable’ test applicable to unfair dismissal claimants), and a more claimant-favourable burden of proof.

Turning to justification, the Court of Appeal considered the various opportunities the legislature would have had to introduce interim relief for discrimination claims arising from dismissal, including the introduction of the EA. The court noted the limits of the remedy:

Interim relief is a measure protecting employees who have done certain acts in a representative capacity, or on behalf of the workforce generally, or in the public interest. That is the common thread which links trade union activity, health and safety representation and whistleblowing claims and distinguishes them from cases (or at any rate the great majority of cases) brought by individuals alleging that they have been subjected to discrimination or unfairly dismissed. [Para 60] 

The Court of Appeal concluded that there must have been a positive decision by parliament not to make interim relief available to discrimination claimants, and the court had to give weight to this.

Comment

The Court of Appeal finding that the lack of interim relief for discrimination claims arising from dismissal does not breach ECHR is a setback for this remedy being available to victims of discrimination. Nonetheless, the court did set out useful guidance for considering an Article 14 breach.

This article was first published in the Discrimination Law Association (DLA) briefings, Volume 74, November 2021.