Thread by @JasonBraier

Steer v Stormsure: There's sure to be a storm a-comin' on this one, but for now the CA has found that the lack of interim relief under the Equality Act isn't discriminatory under the ECHR & hence there's no legislative reading in or declaration of incompatibility needed #ukemplaw

2/ Bean LJ's judgment starts ominously for Steer, noting the scarcity of injunctions to keep employment contracts in force or to suspend a dismissal, before noting the limited incremental crawl of interim relief as an ET remedy.

3/ The facts of the underlying claim are perhaps unimportant but C's case is she worked for R for 4 months before resigning in circumstances of sexual harassment, a botched grievance investigation, intrusive WFH conditions & enforced reduction of hours by R due to her childcare.

4/ Ultimately she resigned, bringing claims which included a s.103A automatic unfair dismissal claim as well as sex discrimination & victimisation claims. She applied for interim relief in respect of both the ERA & EqA claims, regardless of such relief's omission from the EqA.

5/ The ET listed an interim relief hearing solely relating to the s.103A claim, C sought reconsideration of the non-listing in re the EqA claims, which the ET replied to saying it had no jurisdiction to hear it. C appealed to the EAT.

6/ That appeal raised grounds under EU law (equivalence & effectiveness as well as under the Charter) & under the ECHR. The latter relied on A14 alongside A6, 8 & A1P1 ECHR, reliant on the "or other status" category of characteristic under A14.

7/ The EAT found against C on EU law principles, but found on the ECHR R conceded that the case was within the ambit of A6 & that C had a relevant status of 'other status' under A14. It found no material difference between a s.103A dismissed employee & 1 dismissed for EqA reasons

8/ No justification for the difference of treatment between these two comparable species of litigant had been advanced, & thus the EAT found the lack of interim relief under the EqA a breach of A14 with A6.

9/ Separately, C also relied under A14 on the core status of sex. That argument wrested on similar grounds to those in Unison - women are more likely to suffer discrim dismissals, hence the lack of EqA interim relief impacts them more greatly. The EAT disagreed.

10/ The EAT next looked to statutory construction, holding a conforming interpretation couldn't be applied as that would be to quasi-legislate, so he dismissed the appeal but gave C permission to appeal to the CA to consider whether to make a declaration of incompatibility.

11/ The CA disagreed with a host of findings of the EAT (a number by concession at the EAT) at most of the staging posts which C needed to reach to succeed in her appeal.

12/ 1st the CA disagreed with the concession re Art 6, holding instead that A6 doesn't touch on substantive content of national law but just procedural fairness. With no right to interim relief under UK law, the CA held (rather pithily) that it wasn't within A6's ambit.

13/ In that cursory dismissal, the CA failed to engage with C's skeleton in which C had raised a whole host of ECtHR Art 6 cases which suggested a much broader position on A6's ambit than the CA considered to be the case.

14/ The CA moved on to Art 8. Here (though perhaps with some reluctance) the CA held itself prepared to accept the case fell within A8's ambit, though highlighting that A8 isn't always engaged by dismissal. As a result, the CA didn't need to consider A1P1.

15/ On status, the CA dismissed the sex status argument in 1 short paragraph, saying that any dismissed whistleblower can apply for interim relief, irrespective of sex & any discrim dismissal claimant can't, irrespective of sex.

16/ For some reason, indirect sex discrim is dealt with under 'other status' rather than sex as core status. The CA held you couldn't say that because women bring more sex discrim claims, they're indirectly discriminated against when compared to claims where the sexes are equal.

17/ Otherwise, said the CA, sex discrim would compare itself also to other areas of law & complain of discrimination for the absence of their remedies. To me, that's a false argument. The A14 comparison must be with an analogous situation - Bean LJ's concern just wouldn't arise.

18/ Moreover, Bean's position is strikingly dissonant with the approach of the Sup Ct in Unison (which was cited to the CA in this case but not referred to in the judgment). It seems to me that the CA has taken the wrong approach. Here's the Unison quote:

19/ Bean LJ was also concerned by a ping pong approach to an accretion of rights via A14, suggesting a man could piggyback on to any success in Steer to claim discrimination in the lack of interim relief for ordinary unfair dismissal claims.

20/ But again, that's a straw man. Where's the analogous situation? These are two very different regimes for good & settled reason, whereas whistleblowing & discrim claims bear such a close relationship - all the moreso post-Osipov.

21/ The CA moved on to look at this issue of analogous situations. Whilst noting the analogy in Woodward, it held that that was pretty general & principally related to victimisation. Bean LJ dismissed Osipov for similar reasons of generality.

22/ Bean LJ chose to avoid reaching any final conclusion on analogy (which is a shame as it may have undermined his earlier arguments), preferring to focus on whether the difference in treatment was justified. But 1st, he needed to look at whether it was less favourable at all.

23/ On that, without authority & without explaining why, Bean LJ applied the EU principle of equivalence to the comparison to be applied under the ECHR. That's pretty extraordinary, all the moreso in a jurisdiction no longer require to abide by EU principles of law.

24/ Does this mean that through some astonishing back door, the CA in Steer has brought into domestic construction of the Human Rights Act a doctrine which is otherwise absence from domestic law? Who knows?

25/ In any event, this approach led Bean LJ to concentrate solely on the advantageous aspects of the EqA, find (as the EAT did) that it didn't offend the EU principle of equivalence, & then to hold that the same applies for the purpose of A14 comparison.

26/ Finally, the CA considered justification - something not considered at the EAT as the government wasn't represented & hence no justification had been advanced.

27/ Whilst ordinarily considerable deference/margin of appreciation might be given to Parliament as to the way it structured its statutory rights & remedies, C noted the lack of any debate on interim relief under the EqA & hence said no deference should be given.

28/ The CA disagreed. It held a positive decision must've been taken not to add interim relief to the suite of remedies when the Equality Bill was going through its stages. It could have done this then or on many earlier occasions but chose not to.

29/ Bean LJ considered the rationale for where the line was drawn to be the protection of employees who've done things in a representative capacity or on behalf of the workforce or in the public interest - what I'd perhaps describe as acts linked by altruism.

30/ Some might say it's pretty offensive to separate off discrim dismissal claims as lacking altruism. The act of resigning itself may be altruistic - highlighting the improper acts of a senior colleague. It may be altruistic without founding a s.103A claim.

31/ Bean LJ then noted the SoS's justification for the differential remedies, the last 3 aspects of which were essentially about fairness to employers & floodgates.

32/ It may be it's here we get to the raison d'etre of Bean LJ's judgment - the floodgate concern. He notes the rarity of interim relief applications at present (I've had 3 in 16 yrs) but suggests that any decently advised sex discrim claimant would bring one if it was available.

33/ Bean then goes in the opposite direction, postulating that maybe extension of some form of interim relief to all unfair dismissals (or to those with discrim) would be a good thing, but that this is a matter for Parliament and not for the court.

34/ Thus the appeal was dismissed, the CA didn't need to engage with the questions of construction & declarations of incompatibility & interim relief under the EqA is, for the moment, not a thing.

35/ It seems to me that this one is ripe for appeal & the sort of case to which the CA ought to give permission. For one thing it needs to disentangle a newly mangled A14 & deal with a new CA doctrine of equivalence in domestic law, as well as the substantive case!

36/ The CA ended by describing @MilsomChr's unsuccessful submissions as ingenious and eloquent. That they were. Time will tell if the Sup Ct ever agrees with my view that they were also convincing & right. Here's the judgment: bailii.org/ew/cases/EWCA/…

#ukemplaw