Steer v Stormsure Ltd

The absence of a statutory right to interim relief in discrimination or victimisation claims arising from dismissal does not, as a matter of EU law, breach the principles of effectiveness or equivalence because full compensation, with interest, provides an effective remedy and the overall package of procedural rules is not less favourable than comparable domestic claims.

However, a difference in treatment between claimants seeking interim relief under ERA s103A and those bringing discrimination/victimisation claims can amount to unjustified discrimination under Article 14 ECHR read with Article 6.

The EAT cannot read-in an interim-relief remedy where doing so would cross the boundary between interpretation and legislation, and it has no power to make a declaration of incompatibility; accordingly the appeal is dismissed despite a finding of Article 14 breach.

The appellant alleged sex discrimination and victimisation arising from dismissal and sought interim relief in the Employment Tribunal. No statutory right to interim relief appears in the Equality Act 2010. The appellant argued that EU principles (effectiveness/equivalence), the EU Charter, or the ECHR required a right to interim relief and that words should be read into domestic law.

The EAT considered (1) EU law principles and whether a conforming interpretation or horizontal direct effect could create an interim remedy; and (2) ECHR Article 14 in conjunction with Article 6 and whether a section 3 HRA conforming reading could be applied. The ET had refused jurisdiction for interim relief; the EAT heard the pure point of law appeal. The central question was whether domestic remedies are deficient and, if so, whether the tribunal may fashion a remedy.

(1) Overall disposition: Appeal dismissed. The EAT held that there is no breach of the EU law principles of effectiveness or equivalence requiring interim relief for discrimination/victimisation dismissals (see paras [62]–[78]; [111]–[128]).

(2) Effectiveness: A final remedy of full compensation, uncapped and payable with interest, satisfies effectiveness. Delay does not render the remedy ineffective in ordinary discrimination claims; the CJEU authorities, read together, allow Member States a choice of remedies (paras [62]–[77]).

(3) Equivalence: Discrimination/victimisation claims are comparable to s103A whistleblowing unfair dismissal claims, but when procedural and remedial rules are considered as a whole the discrimination regime is not less favourable. Alternative comparators (ordinary unfair dismissal) mean the Proviso applies (paras [79]–[128]).

(4) Conforming interpretation (Marleasing / HRA s.3): Even if EU or ECHR rights required interim relief, reading words into the Equality Act 2010 to create such a remedy would cross the boundary between interpretation and amendment. Practical and policy consequences are significant and the EAT is not equipped to evaluate them (paras [130]–[162]).

(5) Fundamental EU principles and horizontal direct effect: No independent role for fundamental EU principles to extend relief where domestic law already provides an effective remedy (paras [163]–[170]).

(6) ECHR Article 14: The matter falls within the ambit of Article 6. The appellant qualifies as a class with "other status" (persons who wish to bring discrimination/victimisation claims arising from dismissal). The differential treatment compared with s103A claimants is not justified on the materials before the court and therefore amounts to an Article 14 breach (paras [176]–[192]).

(7) Remedy under the HRA: The EAT cannot make a declaration of incompatibility and it is not possible to read words into the EA 2010 by way of section 3 in this case. Consequently no effective domestic relief can be granted despite the Article 14 finding. Permission to appeal to the Court of Appeal was granted on the ECHR point (paras [193]–[195]).

1. Employment Tribunal (first instance): Application for interim relief refused; reconsideration correspondence; interim relief listed only for whistleblowing claim.
2. Employment Appeal Tribunal: Appeal on pure point of law heard; this judgment dismissed the appeal but granted permission to appeal to the Court of Appeal on the ECHR Article 14 point (see paras [21]–[26]; [195]).