This is a fascinating case that has the potential to shift how discrimination cases are conducted in the courts. Whilst it is still progressing through the court system it is likely that its impact will begin to be felt in 2021/22.

The case revolves around Steer who was dismissed. Steer alleges this amounted to both sex discrimination and victimisation. Unusually in the ET she asked for ‘interim relief’. For those who are unaware Interim Relief is an order for employment to continue pending the ET outcome which is currently only permissible in whistleblowing cases. On this basis the ET of course dismissed the request.

But hang on….. dissatisfied with this Steer went to the EAT drawing comparisons between a case of discrimination and a case of whistleblowing. Both have shared characteristics; they are uncapped, they require no minimum length of service and both allow for compensation for injury to feelings irrespective of financial loss. The ERA 1998 allows for interim relief in whistleblowing but there is no similar provision in EA2010 for discrimination. The EAT concluded that this was unlawful.

So…. Onto the Court of Appeal for a hearing on a date yet to be determined. This will require input from the government who will need to justify why whistleblowing allows for interim relief but discrimination does not. If they can’t do so then the Court of Appeal may issue a ‘Certificate of Incompatibility’ which essentially requires a change in the law to bring discrimination into line with whistleblowing.

There are possible justifications including the lower bar for discrimination claims but perhaps the strongest will be with the backlog of cases in the ET and no sign of improvement any move to allow interim relief in discrimination cases could be seen as unfairly penalising employers not only from a financial perspective but also in terms of their ability to run their businesses and manage staff effectively all whilst having a disgruntled employee in their midst.

If the courts were to reject the justification, then employers will be left in a difficult and challenging position.

We’ll be keeping a close eye on this to see what the ultimate outcome is. For advice on this or other HR matters we’re always happy to hear from you.