Steer v Stormsure Ltd

A remedy of uncapped compensation, with interest to reflect delay, provides an effective EU-law remedy for discriminatory dismissal. The EU principles of effectiveness and equivalence do not require interim relief. Equivalence requires comparison of the procedural and remedial schemes as a whole, rather than comparison of interim relief alone.

A conforming interpretation cannot create a substantial new interim-relief regime where that would cross from interpretation into quasi-legislation and entail policy and practical choices for Parliament. Although the differential availability of interim relief was unjustified discrimination contrary to Article 14 read with Article 6 of the ECHR, the Employment Appeal Tribunal could neither read in the remedy nor make a declaration of incompatibility.

The claimant alleged sex discrimination and victimisation arising from her dismissal. She also alleged automatic unfair dismissal for making a protected disclosure. She sought interim relief for both claims, but the Employment Tribunal listed an interim-relief hearing only for the whistleblowing claim.

The Employment Tribunal held that it had no jurisdiction to grant interim relief for the discrimination and victimisation claims. The claimant appealed on the pure legal question whether such relief had to be available under EU law or the ECHR. The appeal concerned neither the merits of the underlying claims nor whether they had a pretty good chance of success.

The central issue was whether the absence of interim relief for dismissal-related discrimination and victimisation claims was unlawful and, if so, whether the Tribunal could provide a remedy.

1. Appeal dismissed. The statutory schemes did not provide interim relief for claims under the Equality Act 2010, and EU law did not require the Tribunal to create it.

2. The principle of effectiveness was satisfied. A successful claimant could obtain a declaration, uncapped compensation and interest. Delays in Employment Tribunal litigation, although sometimes substantial, were not so excessive that a final compensatory remedy ceased to be effective. Interim relief would improve the claimant's position, but it was not a condition of an effective remedy.

3. For equivalence, a protected-disclosure automatic-unfair-dismissal claim under section 103A of the Employment Rights Act 1996 was a similar domestic action to dismissal-related discrimination and victimisation claims. However, the relevant procedures and remedies had to be assessed in the round. The more favourable limitation extension, burden of proof, causation standard, injury-to-feelings award and potential individual liability in discrimination claims outweighed the availability of interim relief in section 103A claims. Alternatively, ordinary unfair-dismissal claims were also similar domestic actions and did not carry interim relief.

4. Even if EU law or the Convention required a change, a conforming interpretation could not read an interim-relief entitlement into the legislation. It would introduce a major remedy into a deliberately separate statutory scheme and require assessment of wide practical and policy consequences for workers, employers and Tribunal resources.

5. The claimant nevertheless established a breach of Article 14 read with Article 6 of the ECHR. A person wishing to bring a dismissal-related discrimination or victimisation claim had an “other status”; the respondent advanced no legitimate aim or justification for the different treatment from a section 103A claimant. The EAT lacked power under the Human Rights Act 1998 to make a declaration of incompatibility and could grant no effective relief. Permission to appeal was granted on that point.

• Employment Appeal Tribunal: appeal dismissed. The EAT upheld the Employment Tribunal's conclusion that it could not grant interim relief for dismissal-related discrimination or victimisation claims.
• Employment Tribunal: declined to list interim relief for the discrimination and victimisation claims because it had no jurisdiction to grant it. No lower-court citation was stated.