The Court of Appeal has handed down a highly anticipated judgment concerning interim relief in discrimination and victimisation claims in the Employment Tribunal.
The Appellant was employed by the Respondent and alleges that, during this period of employment, she was subjected to sexual harassment by a colleague. The Appellant presented a grievance and asked to work from home . The Respondent agreed, but requested that she install monitoring software and cut her working hours. The Appellant claimed that constituted a dismissal and/or a constructive dismissal; and that her dismissal amounted to sex discrimination and to victimisation for having done protected acts (namely the lodging of the grievance and the decision to work at home) under the Equality Act 2010.
The Appellant presented a claim to the Employment Tribunal (“ET”) and sought interim relief under the 1996 Act and the Equality Act 2010 both in relation to a whistleblowing claim and to her sex discrimination and victimisation claims. The ET informed the Appellant that it did not have jurisdiction to grant interim relief in discrimination and victimisation claims, unlike whistleblowing.
The Appellant appealed to the Employment Appeal Tribunal (“EAT”), which rejected her argument that the disparity in interim relief for discrimination and victimisation claims breached EU law but, in the absence of representations from the Government, accepted her argument that there was a breach of Article 14 of the European Convention on Human Rights (“ECHR”) read together with Article 6 ECHR, Article 8, and/or Article 1 of Protocol 1 (“A1P1”). However, the EAT held that it was not possible to read the legislation compatibly with the Convention.
On appeal to the Court of Appeal, the Appellant contended that the EAT erred in holding that the duty of purposive construction could not extend to reading down the Equality Act 2010 so as to render it Convention-compliant by making interim relief available in discrimination cases. Alternatively, a declaration of incompatibility should be issued.
The Secretary of State for International Trade and Minister for Women and Equalities was joined as a party. She contended that there had been no contravention of Article 14 and that the appeal should be dismissed for any or all of the following reasons: the subject matter of the case does not fall within the ambit of a substantive Convention right and accordingly Article 14 does not apply; the Appellant was not treated differently on any prohibited ground within the meaning of Article 14; the Appellant and her comparator (a hypothetical dismissed whistleblower) are not in analogous situations; the absence of a right to seek interim relief in a claim under the 2010 Act is justified.
HELD: Appeal dismissed, on the basis that there had been no breach of Article 14 at all. The fact that interim relief in the ET is available to a dismissed whistleblower but not to the Appellant is not discrimination on the grounds of sex. Any dismissed whistleblower, whether male or female, can make an application for interim relief. Any discrimination claimant who has been dismissed, whether male or female, cannot do so. Neither is the denial of interim relief discrimination on the grounds of “other status”, since being a litigant in one type of case is not a status. The remedies available to the Appellant, taken as a whole, are not in any event less favourable to her than those available to a dismissed whistleblower; and even if they were, the difference in treatment by the legislature has been shown to be justified.
Mathew Purchase QC was involved in this case.