If someone is dismissed for blowing the whistle or for carrying out certain trade union activities, they can ask a tribunal to grant them interim relief ordering the employer to continue their employment until their substantive claim is heard. The Court of Appeal has confirmed in Steer v Stormsure Ltd, however, that the power to order interim relief does not extend to discrimination claims under the Equality Act 2010.

Basic facts

Shortly after starting work for Stormsure, Ms Steer complained that a colleague had sexually harassed her. After the company failed to adequately investigate her grievance, she asked to work from home. This was eventually agreed, but she was then instructed to install screen shot monitoring software which she said was an unjustified intrusion into her private life. Not long after, her working hours were unilaterally reduced to 60 per cent which, she claimed, amounted to a dismissal.

She lodged a tribunal claim for unfair dismissal, but also that her dismissal amounted to sex discrimination and to victimisation for protected acts (the grievance and the decision to work at home). She also claimed automatically unfair dismissal for making a protected disclosure, contrary to the Employment Rights Act 1996 (ERA). She asked the tribunal to grant her interim relief under the ERA (for the whistleblowing claim) as well as the Equality Act (for the discrimination claims).

Although a right to claim interim relief is not available in a claim for discrimination and victimisation under the Equality Act (unlike a claim for whistleblowing), Ms Steer argued that it fell under article 6 of the European Convention on Human Rights (ECHR). As the failure to provide interim relief in discrimination cases meant that claimants were being treated differently to those who brought claims for unfair dismissal because of a protected disclosure, it amounted to an infringement of the non-discrimination principle in article 14 ECHR.

Relevant law

Article 14 states that “the enjoyment” of all the rights in the convention “shall be secured without discrimination on any ground”. This right can only be exercised in conjunction with another right under the convention, in this case article 6 which states that everyone has the right to a fair trial.

Tribunal and EAT decisions

The tribunal held that it did not have jurisdiction to grant interim relief for the discrimination/victimisation claims. The EAT (weekly LELR 708) held that although Ms Steer was entitled to rely on article 6 when read with article 14, it refused to grant her interim relief as this would cross the line into making an amendment to the legislation which it was not equipped to do.

As the EAT did not have the power to make a declaration of incompatibility under the Human Rights Act 1998, it granted Ms Steer leave to appeal to the Court of Appeal to consider whether to grant a declaration of incompatibility for the breach of article 14.

Decision by Court of Appeal

Dismissing the appeal, the Court of Appeal held that her claim did not fall within the ambit of article 6, which is only concerned with procedural fairness. While the court was prepared to assume that her claim fell within article 8 (the right to private life), it concluded that there was no breach of article 8 when read with article 14. The fact that interim relief was available in a whistleblowing claim but not in a discrimination claim did not mean that this amounted to discrimination because of sex. It further held that being a litigant in one type of claim did not constitute relevant status for the purposes of article 14 and on that basis her claim failed.

The court, however, also went on to consider if the remedies available in discrimination claims were less favourable than those that apply to whistleblowing claims. It agreed with the EAT that it was important to take into account a “whole package” approach given the different tests to extend the time limit, the burden of proof, the “reason for dismissal” test, the provision for third party liability, the availability of injury to feelings damages and provision for contributory conduct which are more favourable to those bringing discrimination claims than those bringing a claim for automatic unfair dismissal for whistleblowing. Moreover, even if it was less favourable treatment the court considered it could be justified. In reaching this view, it gave considerable weight to the choice parliament had made when drawing the line as to when interim relief should be available.


Interim relief is only available in a limited number of circumstances, and while the court commented on the injustice this caused to those who claim unfair dismissal and have to wait many months for a hearing, it took the view that parliament had ultimately decided where it would draw the line.