This week we look at a case to see if a big change to discrimination claims could be on the way.
The EAT have recently handed down a judgement stating that the current impossibility of claiming interim relief in a discrimination claim is contrary to the European Convention on Human Rights (ECHR). Brexit will not prevent cases being taken to the ECHR, but the repeal of the Human rights Act might render ECHR decisions less effective and the UK will not be bound by changes to EU Law.
Interim relief entitles an employee to receive their normal pay after they have been dismissed (before the decision of an Employment Tribunal) where the Employment Tribunal consider a prima facie case of whistleblowing has been made out. In other words, where an employee has blown the whistle and has subsequently been sacked, they may be able to claim their full pay from their employer pending the decision of a tribunal, if the tribunal is satisfied that the dismissal was probably because of the disclosure.
Interim relief is currently not available under the Equality Act 2010 in the analogous situation of where an employee is no longer employed because of discrimination or victimisation, and the tribunal is satisfied that there is a prime facie case to support this. Today’s case challenged that principle, with some success.
Cavanagh J found that the failure to provide interim relief for prima facie cases of discrimination or victimisation under the Equality Act 2010 was contrary to Article 14 of the ECHR (prohibition of discrimination).
When a court finds that a piece of UK law is contrary to the ECHR, they have the authority to make a ‘declaration of incompatibility’ (if they are a higher court such as the Court of Appeal). This places big pressure on the government to amend the legislation in question, and indeed no government has entirely refused to amend a piece of legislation that has been declared incompatible with the ECHR.
The EAT do not have the authority to make such declarations. Mr. Justice Cavanagh did however grant leave to appeal to the Court of Appeal, who do. It may well be that the Court of Appeal determine the failure to provide injunctive relief for discrimination and victimisation claims is contrary to the ECHR, which would put big pressure on the government to amend the legislation.
The outcome of the Court of Appeal decision is eagerly anticipated, as it could change the way discrimination claims are conducted and is especially important given the current long waiting times to get cases heard in the employment tribunal.