Automated Summary
Key Facts
The Appellant, Mrs. S Steer, was employed by Stormsure Limited from March 2020 until July 2020. She alleged sexual harassment by a fellow employee and claimed the employer failed to protect her. After filing a grievance in June 2020, she requested remote work to avoid harassment but was required to install screen monitoring software. She claims her working hours were reduced to 60% due to childcare responsibilities, constituting sex discrimination and victimisation. The Appellant alleges dismissal for making a protected disclosure (whistleblowing) under the Employment Rights Act 1996, s103A. She sought interim relief in the Employment Tribunal, which was denied for discrimination/victimisation claims but granted for whistleblowing. The appeal challenges the lack of interim relief in discrimination cases, asserting it violates EU law principles and the ECHR.
Issues
- The Appellant argued the lack of interim relief breaches EU Charter principles of non-discrimination and effective remedies. The Tribunal rejected this, stating domestic law already provides effective remedies and that fundamental principles do not extend beyond effectiveness/equivalence requirements.
- The Appellant claimed equivalence was breached by comparing discrimination/victimisation claims to s103A whistleblowing claims. The Tribunal found the overall procedural/remedies package for discrimination claims (e.g., broader time limits, injury to feelings compensation) was no less favourable than s103A claims and alternatively referenced 'ordinary' unfair dismissal as a comparator.
- The Appellant argued that domestic law's lack of interim relief for discrimination/victimisation dismissal claims contravenes the EU principle of effectiveness, requiring full compensation and equivalence. The Tribunal concluded that the existing domestic remedies (full compensation, interest) satisfy effectiveness, and delays in proceedings do not necessitate interim relief.
- The Tribunal found the Appellant's status as a claimant in discrimination/victimisation dismissal cases engages Article 14. The difference in treatment was not justified, but no conforming interpretation could be applied due to quasi-legislative concerns, leading to dismissal of this ground.
Holdings
- The Tribunal concluded that the absence of interim relief in discrimination/victimisation cases does not violate fundamental principles of EU law (including Articles 15 and 47 of the EU Charter) because domestic law already provides an effective remedy. The principle of horizontal direct effect was not applicable as the EU law principles did not extend beyond effectiveness and equivalence.
- The Tribunal held that applying a conforming interpretation to the Equality Act 2010 to grant interim relief in discrimination/victimisation cases would cross the boundary into quasi-legislation, as it would significantly alter the legislative framework and create policy implications the EAT is not equipped to evaluate.
- The Tribunal dismissed the Appellant's ECHR claim, finding no breach of Article 14 (prohibition of discrimination) when read with Article 6 (fair trial). While the Appellant's status as a claimant in a discrimination case was recognized, the Government's failure to justify the difference in treatment was not remedied by the EAT due to its inability to apply a conforming interpretation or grant a declaration of incompatibility.
- The Employment Appeal Tribunal held that the absence of a right to claim interim relief in discrimination/victimisation cases relating to dismissal does not infringe the EU law principles of effectiveness and equivalence. Domestic law provides full compensation and comparable procedural remedies to similar domestic actions (e.g., whistleblowing claims). The principle of equivalence was satisfied as procedures for discrimination claims are no less favourable than those for other comparable claims.
Remedies
The Employment Appeal Tribunal (EAT) dismissed the Appellant's appeal but granted permission to appeal to the Court of Appeal regarding the breach of Article 14 of the ECHR, allowing the Court of Appeal to consider a declaration of incompatibility.
Legal Principles
- The court addressed the potential for horizontal direct effect of EU law principles (Articles 15 and 47 of the EU Charter), but held that these did not apply in the absence of a breach of domestic law. It also ruled that the EAT could not grant interim relief via a conforming interpretation of the Equality Act 2010 due to the constitutional boundary between judicial interpretation and legislative amendment, citing cases like Benkharbouche and Pytel.
- The court applied the EU law principles of effectiveness and equivalence to determine whether interim relief should be available in discrimination/victimisation dismissal cases. It concluded that these principles were satisfied by existing domestic remedies (full compensation + interest) and that equivalence was maintained because procedures for discrimination claims were no less favourable than those for similar domestic claims like whistleblowing or unfair dismissal. The court also considered the ECHR's Article 14 (prohibition of discrimination) in conjunction with Article 6 (fair trial) and found a breach due to the lack of interim relief for discrimination claims, but could not grant relief because applying a conforming interpretation would cross into quasi-legislative territory.
- The court examined the scope of the principle of equivalence by comparing discrimination/victimisation claims to similar domestic actions (e.g., whistleblowing claims under s103A and 'ordinary' unfair dismissal claims under s98). It found that while interim relief was available in s103A cases, the overall procedural/remedial framework for discrimination claims was no less favourable due to benefits like shifting burden of proof, injury to feelings compensation, and more lenient time limits. The 'no most favourable treatment proviso' was also invoked to justify the disparity between discrimination claims and other claim types.
Precedent Name
- R (Stott) v Secretary of State for Justice
- Totel Ltd v Revenue and Customs Commissioners
- Baczkwoski v Poland
- Preston and others v Wolverhampton Healthcare NHS Trust
- Kuzel v Roche Products Ltd
- Marshall v Southampton and South West Hampshire Area Health Authority (Teaching) (No 2)
- R v Secretary of State for Transport, ex parte Factortame and others
- Arjona Camacho v. Securitas Seguridad Espana SA
- Revenue and Customs Commissioners v Stringer
Cited Statute
- Equality Act 2010
- European Union (Withdrawal Agreement) Act 2020
- Employment Tribunals (Rules of Procedure) Regulations 2013
- Trade Union and Labour Relations (Consolidation) Act 1992
- Recast Equal Treatment Directive (2006/54/EC)
- Employment Rights Act 1996
- Working Time Regulations 1998
- European Communities Act 1972
- European Union (Withdrawal) Act 2018
- Equality Directive (2000/78/EC)
- Employee Study and Training (Procedural Requirements) Regulations 2010
- European Convention on Human Rights
- EU Charter of Fundamental Rights
- Human Rights Act 1998
- Public Interest Disclosure Act 1998
- Racial Discrimination Directive (2000/43/EC)
Judge Name
The Honourable Mr Justice Cavanagh
Passage Text
- The principle of equivalence requires that procedures and remedies for EU-derived claims be no less favorable than similar domestic actions. The court found that procedures for discrimination/victimisation claims are not less favorable than those for s103A claims (whistleblowing), particularly due to more favorable time limits and compensation for injury to feelings.
- The absence of a right to claim interim relief in discrimination/victimisation cases does not infringe the EU law principle of effectiveness. Domestic law provides for full compensation, plus interest, and this complies with the requirements of effectiveness. Delays in Employment Tribunal proceedings do not necessitate the provision of interim relief.
- The Appellant's first two grounds are that the failure of domestic law to provide interim relief in discrimination/victimisation cases relating to dismissal contravenes the EU law principles of effectiveness and equivalence. She argues this should be remedied by reading appropriate wording into the Equality Act 2010 to grant a right to claim interim relief in dismissal cases.