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Lack of interim relief in discrimination cases could be incompatible with ECHR

Makbool Javaid, Partner - Simons Muirhead & Burton

A claim for interim relief can be made to an ET where an individual believes they have been dismissed for one of a list of specified reasons including acting as a health and safety rep, engaging in lawful trade union duties or whistleblowing. But it is not available for discriminatory dismissals. In Steer v Stormshore Ltd, S alleged that she was dismissed for discriminatory reasons contrary to the Equality Act 2010 (ERA 2010). An ET refused to permit her to apply for interim relief, but S argued that the right to claim interim relief must be read into the ERA 2010 by the European Convention on Human Rights (“ECHR”) (applied via the Human Rights Act 1998 (HRA 1998) in the UK). The EAT held that Article 14 ECHR is engaged, (which requires that all of the rights and freedoms set out must be protected and applied without discrimination), because the matter in question comes within the ambit of Article 6, as it relates to judicial remedies for the enforcement of civil rights. However, the EAT has no power to make a declaration of incompatibility under the HRA 1998 and it would be wrong to apply a conforming interpretation to the ERA 2010, in order to read in a right to apply for interim relief in discrimination claims arising from dismissals. Therefore, the appeal was dismissed but leave to appeal was granted to appeal to the Court of Appeal, so it can consider whether to grant a declaration of incompatibility for the breach of Article 14.

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