Lack of interim relief for UK discrimination claims lawful

Out-Law News | 24 Jun 2021 | 9:38 am |

Sarah Ashberry tells HRNews about the rise in applications for interim relief in past year

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  • Transcript

    In some welcome news for employers, the Court of Appeal has rejected the opportunity to extend the remedy of interim relief to cases of discrimination involving a dismissal. The decision in the case of Steer v Stormsure overturns the Employment Appeal Tribunal’s decision last year which ruled that the absence of interim relief in discrimination claims breaches Article 6 and 14 of the European Convention on Human Rights which cover prohibition of discrimination and right to a fair trial respectively. 

    A reminder, broadly speaking, interim relief is a remedy available in certain trade union and whistleblowing dismissal cases, where a Claimant dismissed in the last 7 days can obtain an order for ‘continuation of employment’, where they continue getting paid by their ex-employer if they can show a high likelihood that they will win their automatic unfair dismissal claim at a full hearing. It is a rare but powerful remedy, a bit like an injunction, and means the employee can, effectively, hang on to full pay and benefits for well over a year in many cases and often a lot longer than that.   

    The Law Society Gazette reports this as the Court of Appeal rejecting a ‘major shift on interim relief for ET claims’. They quote one of the judges, Lord Justice Bean, who explains that granting interim relief would invite any well-advised claimant to seek the remedy and effectively recover a full salary until the tribunal could arrange a hearing. He goes on to say: ‘The likely result of extending interim relief to sex discrimination cases, or to discrimination cases generally, would therefore be to force ETs into 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.’

    Interim relief applications are relatively rare, with typically only around 150 filed every year, compared with the thousands of sex discrimination claims lodged each year. However, in recent times, especially the past year, we’ve seen a rise in applications. This was covered back in January by People Management asking the question: 'why are interim relief applications increasing in tribunals' looking at the impact that this rather drastic remedy can have on employers. They cite a year-on-year rise, and a 41% rise over the last two years. So, whilst the Court of Appeal’s decision in the Steer case is definitely good news, should employers be concerned about the rise in number of applications in cases where this form of relief is available? It’s a question I put to the Head of our Advocacy Unit, Sarah Ashberry:

    Sarah Ashberry: "I would want to reassure employers really because I suspect the large majority of interim relief applications are actually doomed to failure and the reason is that it's an incredibly high test for the claimant to meet. They have to demonstrate to the employment judge's satisfaction that they are pretty likely to win their case and it's not enough for them to show that they are more likely than not. So they need to get the employment judge to a position, not just that they're 51% likely to win, but really a much higher standard than that and that is really very difficult for claimants."

    Joe Glavina: "What do you make of this sharp rise in applications that we've seen during lockdown? Curious isn't it?"

    Sarah Ashberry: "The rise in applications is really fascinating actually and I think the reasons for it are basically to do with the COVID crisis, because if you think back to last March, 2020, really every workplace in the country was impacted, quite suddenly, and quite alarmingly, I think, by this by this crisis and whereas there are certain sectors like rail and construction where health and safety issues have always been terrifically important there are other sectors where health and safety issues haven't until now really been a sort of day to day issue of concern in the workplace but suddenly it was, and then there were a lot of changes that came in very, very quickly and then, sadly, in 2020, a lot of people lost their job. So, I think these reasons have combined to cause a bit of a boom and interim relief. I mean, lots of people probably have never heard of interim relief, or never had to deal with it. I've dealt with two cases now in the last six months and I think, anecdotally, all employment lawyers have noticed a rise in this in this type of case. It's really bad news for employers, to be honest, because even though, as I said earlier, I thought that a lot of these efforts ultimately lacked merit, you are pitched into a very intense period of case preparation where you literally have days to pull together evidence and witness statements in time for the tribunal hearing. So, unfortunately, that way of working tends to be expensive for employers. So, I think the response to this is to be confident in using, essentially, threats of making costs applications because it simply isn't fair for an employer to have to face that expense of this enormous amount of case preparation on a claim which, ultimately, is going to fail and the claimant needs to be on risk of that. The good thing about interim relief, so far as employers are concerned, is that it's incredibly restricted in terms of the categories of claim and the categories of claimants that it could apply to and at the moment, really, it's limited for public policy reasons for people, for example, who are trade union representatives, or health and safety representatives, or who can demonstrate that they've blown the whistle."

    The Court of Appeal’s decision that the absence of interim relief in discrimination cases is not unlawful is the case of Steer v Stormsure. It sets out the rationale for rejecting the EAT’s earlier ruling and explains how any extension of this remedy would have to be a matter for parliament, not the courts. If you would like to read the judgement you can – we’ve put a link to the judgement in the transcript of this programme.

    - Link to Court of Appeal judgment: Steer v Stormsure Limited