The use of EU Human Rights law to remedy failings of domestic legislation is sometimes a last resort that can pay off. Unfortunately, in this case (Steer v Stormsure – Court of Appeal) it could not resolve what the claimant (and the Equality and Human Rights Commission who supported her) felt was a disparity in the granting of interim relief.
Having raised a sexual harassment grievance which was poorly investigated, the claimant requested she be allowed to work from home to avoid any contact with the harasser. However, soon after this she was informed her contracted hours were to be reduced by 60 per cent. She took this to be a dismissal and lodged a claim of sex discrimination, victimisation and automatic unfair dismissal due to having made a protected disclosure (i.e. whistleblowing) she also requested interim relief be granted linked to her whistleblowing and discrimination claims. Although she was aware that interim relief, which if granted obliges an employer to continue salary payments until a claim has been decided, was not ordinarily available with discrimination and victimisation claims, she argued that to deny this would amount to sex discrimination and therefore breach of EU law and Article 14 of the European Convention on Human Rights.
The Tribunal held that it did not have authority to make a decision on the interim relief request and the claimant appealed to the Employment Appeal Tribunal. Rejecting her appeal relating to an EU law breach, it did however accept that there was a breach of Article 14 of the European Convention on Human Rights in that she was denied recourse to all the rights set out in the convention “without discrimination on any ground”.
However, despite this finding the EAT also pointed out that it could not order the remedy she sought as this would require an amendment to legislation necessary to add discrimination claims to the list of claims to which interim relief could be attached. The question was therefore referred to the Court of Appeal to consider.
The Court of Appeal rejected the application, stating that the disparity in allowing interim relief for some non-discrimination claims, while denying it in discriminatory dismissal claims, did not amount to discrimination and was therefore not incompatible with Article 14.
Moreover, Lord Justice Bean added that to allow interim relief in such circumstances would be too much of a sea change in the rationale which Parliament has given for the very limited group of claims allowing for this remedy and would force Tribunals to deal with a “substantial reordering of their listing priorities, and inevitably mean that delays in other types of hearing (including final hearings in discrimination claims) would increase”.
Whether this decision was more related to a concern for the already overstretched tribunal system or an all-too-common reluctance to question the reasoning of Parliament by declaring incompatibility is difficult to say, though it may be pertinent to add that since the Human Rights Act came into force in 2000 there have been only 43 such declarations, 9 of which were overturned at appeal. Nevertheless, its existence as a mechanism for those who seek to challenge the application of established legislation remains invaluable.
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