Steer v Stormsure Ltd (Sex Discrimination, Human Rights): EAT 21 Dec 2020

The Appellant has presented a claim in the Employment Tribunal in which she alleges that she was dismissed by the Respondent and that the dismissal amounted to sex discrimination and/or victimisation on the ground that she had done a protected act, contrary to the Equality Act 2010. She appeals against the Employment Tribunal’s refusal to permit her to apply for interim relief. The Appellant accepts that no such right appears on the face of the Equality Act 2010.
However, she says that the right to claim interim relief must be read into the Equality Act 2010, because this is required by European Law and/or by the European Convention on Human Rights (‘ECHR’), and/or that such a right should be granted by giving horizontal direct effect to fundamental principles of EU law.
European Law
The Appellant relies on three grounds relating to European Law. The first two 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 says this should be remedied by the application of a conforming interpretation to the Equality Act 2010, by reading in words to the Act, granting a right to claim interim relief in dismissal cases. The Appellant’s third contention is that the failure to provide interim relief in cases such as this is in breach of fundamental principles of EU law and, in particular, Articles 15 and 47 of the EU Charter, and that these principles should be given horizontal direct effect by reading appropriate wording into the Equality Act 2010 so as to provide a right to claim interim relief.
Effectiveness. The absence of a right to claim interim relief in discrimination/victimisation cases relating to dismissal 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. The delays in Employment Tribunal proceedings do not necessitate the provision of interim relief.
Equivalence. The principle of equivalence requires that the procedures and remedies for claims derived from EU law should be no less favourable than those that apply to similar actions of a domestic nature. For these purposes, a claim, under the Employment Rights Act 1996, section 103A, for ‘automatic’ unfair dismissal where the principal reason for dismissal is the making of a protected disclosure, is a similar action of a domestic nature to a discrimination/victimisation claim resulting from dismissal. However, when the procedural rules and remedies are compared as a whole, the procedures and remedies for discrimination/victimisation claims resulting from dismissals are not less favourable than those that apply to claims under section 103A. Further and alternatively, the equivalence principle is complied with because the procedures and remedies that apply to discrimination/victimisation claims are no less favourable than those that apply to another similar action of a domestic nature, namely a claim for ‘ordinary’ unfair dismissal, under the Employment Rights Act 1996, section 98.
Fundamental Principles of EU law. There is no breach of fundamental principles of EU law, because domestic law provides an effective remedy for discrimination/victimisation cases. Further and alternatively, fundamental principles of EU law, as they apply to procedural rules and remedies, do not go further than the principles of effectiveness and equivalence, which have been complied with by domestic law. The question of horizontal direct effect does not, therefore, arise.
Conforming interpretation. Even if the EAT had found that there was a breach of the principles of effectiveness or equivalence, it was not possible for a conforming interpretation to be applied to the ERA 2010, by reading in a right to apply for interim relief in discrimination/victimisation cases arising from dismissals, because that would cross the line between interpretation and quasi-legislation, and because to do so would require the EAT to take decisions for which it is not equipped and would give rise to important practical repercussions which the EAT is not equipped to evaluate.
The ECHR
The Appellant contends that the failure to grant a right to claim interim relief in discrimination/victimisation cases arising from dismissals infringes the ECHR, Article 14, when read with Articles 6, 8 and Article 1 of Protocol 1.
Article 14 is engaged, because the matter in question comes within the ambit of Article 6, as it relates to judicial remedies for the enforcement of civil rights. The Appellant has an ‘other status’ for the purposes of Article 14, namely that of being an individual who wishes to bring a claim of dismissal/victimisation arising from dismissal.
It is appropriate to consider together the questions of whether those who wish to bring a claim under s103A are in an analogous situation, and whether the difference in treatment can be justified. The difference has not been justified. No legitimate aim has been advanced for the difference in treatment. The Respondent, being a private employer, is not in a position to say why the difference exists, and the Government did not respond to an invitation to intervene in this appeal. In these circumstances, it would be inappropriate for the EAT to speculate about whether, and, if so, why, the difference in treatment is a proportionate means of achieving a legitimate aim. The burden rests with the Respondent to justify the difference and, through no fault of its own, it has been unable to do so.
Accordingly, the Appellant has made out a breach of Article 14, ECHR.
However, the EAT has no power to make a declaration of incompatibility under the Human Rights Act 1998, section 3, and, for the same reasons as apply to the European Law part of the appeal, it would be wrong for the EAT to apply a conforming interpretation to the ERA 2010, in order to read in a right to apply for interim relief in discrimination/victimisation claims arising from dismissals. Therefore, the EAT cannot grant any relief for this breach.
For these reasons, the appeal is dismissed. Leave to appeal has been granted to appeal to the Court of Appeal, so that the Court of Appeal can consider whether to grant a declaration of incompatibility for the breach of Article 14.
[2020] UKEAT 0216 – 20 – 2112
Bailii
England and Wales

Updated: 28 April 2021; Ref: scu.661674