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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Steer v Stormsure Ltd  EWCA Civ 887 (11 June 2021)
Cite as:  IRLR 762,  EWCA Civ 887,  ICR 1671,  WLR(D) 336
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ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
MR JUSTICE CAVANAGH
UKEAT.0216/20,  UKEAT 0216_20_2112
Strand, London, WC2A 2LL
B e f o r e :
LADY JUSTICE ELISABETH LAING
LORD JUSTICE WARBY
| SABRINA STEER
|- and -
|- and -
|THE SECRETARY OF STATE FOR INTERNATIONAL TRADE AND MINISTER FOR WOMEN AND EQUALITIES
James McHugh (instructed by Markel Law LLP) for the Respondent
Mathew Purchase QC (instructed by Government Legal Department) for the Interested Party
Hearing dates : 25 & 26 May 2021
Crown Copyright ©
Lord Justice Bean:
Facts and procedural history
Legislation on interim relief
"27. Interim relief is available for certain types of claim. It applies where the claimant is complaining about being dismissed. The claim for interim relief must be made within seven days of the effective date of termination. The mechanism for interim relief applies in the same way in relation to all types of claim for which interim relief is available. The ET sets up an urgent hearing, as soon as is practicable. At the hearing, the ET will only provide interim relief if it appears to the ET that it is likely that on determining the complaint the Tribunal will find in the claimant's favour. As I have said, this means that the ET must satisfy itself that the claimant has a pretty good chance of success at the final hearing.
28. Rule 95 of the Rules of Procedure Regulations states that the Tribunal shall not hear oral evidence at the interim relief hearing, unless the ET directs otherwise. The default position, therefore, is that there will be no oral evidence. The issue of interim relief will be decided by reference to the pleadings, submissions, written statements, and the review of a relatively small number of documents.
29. If the ET decides that interim relief should be granted, the employer is asked whether it is prepared to re-instate the claimant or, if not, to re-engage the claimant in another job on terms and conditions which are not less favourable than those which would have applied if the claimant had not been dismissed. If the employer indicates that it is prepared to re-instate the claimant, the ET makes an order to this effect. If the employer indicates that it is prepared to re-engage the claimant, and the claimant agrees, the ET makes an order for re-engagement. If the claimant does not agree to re-engagement, and the ET considers the refusal to be reasonable, the ET will make an order for the continuation of the claimant's contract of employment. If the ET considers that the refusal is unreasonable, the ET will not make any order. If the employer refuses to agree to re-instatement or re-engagement, or the employer does not attend the interim relief hearing, the ET will make an order for the continuation of the claimant's contract of employment.
30. An order for the continuation of the claimant's contract of employment means that the contract of employment will continue in force for the purpose of pay or any other benefit derived from the employment, seniority, pension rights and other similar matters, and for the purpose of determining for any purpose the period for which the employee has been continuously employed, until the final determination or settlement of the claim. The ET specifies an amount which must be paid by the employer during each normal pay period. Such payments are taken into account for the purposes of calculation of damages for breach of contract or compensation for the breach of the relevant statutory right. The employer is not required to permit the claimant to carry on working.
31. The net effect of these provisions, therefore, is that a claim for interim relief, if successful, does not mean in practice that the ET will require the employer to permit the claimant to carry on working pending the determination or settlement of his or her claim. It is not the equivalent of a mandatory injunction or specific performance of the obligation to provide work. Rather, it means that the claimant will continue to receive his/her salary and other benefits in the period up to determination of claim or settlement. This is a valuable benefit, because it can take a number of months before a claim is finally determined (or even longer in complex cases, especially when there is a backlog of claims before the ET). It means that the claimant has a financial cushion whilst s/he is waiting for his/her claim to be heard. It is particularly valuable, because the employee will not have to repay the monies received, even if his or her claim ultimately fails. It also means that the employer has an ongoing financial commitment, which may mean that the employer is more amenable to settlement.
32. Interim relief was originally introduced by the Employment Protection Act 1975, and was limited to claims in which the alleged reason for dismissal was actual or proposed trade union membership or authorised union activities. It was introduced as a way of deterring lightning strikes which used to be a feature of the industrial relations landscape when a trade union official or activist was dismissed for trade union activities. In Bombardier Aerospace/Short Brother v McConnell and others  IRLR 51 (Northern Ireland Court of Appeal), Girvan LJ said, at paragraph 7, that the purpose of interim relief was to "preserve the status quo until the full hearing" and that:
"The interim relief provisions were a response to the problem of dismissals of trade unionists which have the potential to generate suspicion of victimisation which on occasions can result in industrial unrest and industrial action. As pointed out in Harvey on Industrial Relations and Employment Law at paragraph 593, an application for interim relief is intended to head off industrial trouble before it begins or at least before it becomes too serious by allowing an employment tribunal to give a preliminary ruling at an emergency hearing."
33. Provision is made for interim relief in sections 128-132 of the ERA 1996, and in the Trade Union and Labour Relations (Consolidation) Act 1992 ("TULR(C)A"), sections 161-167. There is also provision for interim relief in the Employment Relations Act 1999, section 12, and in the Employee Study and Training (Procedural Requirements) Regulations 2010 (SI 2010/155) ("the 2010 Regulations").
34. Pursuant to ERA section 128, an interim relief claim can be brought if the reason for dismissal is:
(1) Carrying out specified health and safety activities (such dismissal is automatically unfair under ERA 1996, sections 101(1)(a) and (b));
(2) Acting as a representative of members of the workforce for the purposes of Schedule 1 to the Working Time Regulations 1998 (ERA 1996, section 101A(d));
(3) Acting as a trustee of an occupational pension scheme (ERA 1996, section 102(1));
(4) Acting as an employee representative for redundancy or TUPE purposes (ERA 1996, section 103);
(5) Making a protected disclosure (ERA 1996, section 103A);
(6) Being made redundant, when the selection was made on the basis that the claimant was seeking trade union recognition (TULR(C)A, Schedule A1, paragraph 162); and
(7) The claimant was on a blacklist (ERA 1996, section 104F).
35. Pursuant to TURL(C)A, section 162, interim relief is available if the claimant was dismissed on grounds relating to union membership or activities (which is automatically unfair pursuant to TULR(C)A, section 152)."
(The judge went on to describe two further categories of case which I need not set out in this judgment.)
"128.—Interim relief pending determination of complaint.
(1) An employee who presents a complaint to an employment tribunal that he has been unfairly dismissed and—
(a) that the reason (or if more than one the principal reason) for the dismissal is one of those specified in—
(i) section 100(1)(a) and (b), 101A(1)(d), 102(1), 103 or 103A, or
(ii) paragraph 161(2) of Schedule A1 to the Trade Union and Labour Relations (Consolidation) Act 1992, or
(b) that the reason (or, if more than one, the principal reason) for which the employee was selected for dismissal was the one specified in the opening words of section 104F(1) and the condition in paragraph (a) or (b) of that subsection was met,
may apply to the tribunal for interim relief.
(2) The tribunal shall not entertain an application for interim relief unless it is presented to the tribunal before the end of the period of seven days immediately following the effective date of termination (whether before, on or after that date).
(3) The tribunal shall determine the application for interim relief as soon as practicable after receiving the application.
(4) The tribunal shall give to the employer not later than seven days before the date of the hearing a copy of the application together with notice of the date, time and place of the hearing.
(5) The tribunal shall not exercise any power it has of postponing the hearing of an application for interim relief except where it is satisfied that special circumstances exist which justify it in doing so.
129.— Procedure on hearing of application and making of order.
(1) This section applies where, on hearing an employee's application for interim relief, it appears to the tribunal that it is likely that on determining the complaint to which the application relates the tribunal will find—
(a) that the reason (or if more than one the principal reason) for the dismissal is one of those specified in—
(i) section 100(1)(a) and (b), 101A(1)(d), 102(1), 103 or 103A, or
(ii) paragraph 161(2) of Schedule A1 to the Trade Union and Labour Relations (Consolidation) Act 1992, or
(b) that the reason (or, if more than one, the principal reason) for which the employee was selected for dismissal was the one specified in the opening words of section 104F(1) and the condition in paragraph (a) or (b) of that subsection was met.
(2) The tribunal shall announce its findings and explain to both parties (if present)—
(a) what powers the tribunal may exercise on the application, and
(b) in what circumstances it will exercise them.
(3) The tribunal shall ask the employer (if present) whether he is willing, pending the determination or settlement of the complaint—
(a) to reinstate the employee (that is, to treat him in all respects as if he had not been dismissed), or
(b) if not, to re-engage him in another job on terms and conditions not less favourable than those which would have been applicable to him if he had not been dismissed.
(4) For the purposes of subsection (3)(b) "terms and conditions not less favourable than those which would have been applicable to him if he had not been dismissed" means, as regards seniority, pension rights and other similar rights, that the period prior to the dismissal should be regarded as continuous with his employment following the dismissal.
(5) If the employer states that he is willing to reinstate the employee, the tribunal shall make an order to that effect.
(6) If the employer—
(a) states that he is willing to re-engage the employee in another job, and
(b) specifies the terms and conditions on which he is willing to do so,
the tribunal shall ask the employee whether he is willing to accept the job on those terms and conditions.
(7) If the employee is willing to accept the job on those terms and conditions, the tribunal shall make an order to that effect.
(8) If the employee is not willing to accept the job on those terms and conditions—
(a) where the tribunal is of the opinion that the refusal is reasonable, the tribunal shall make an order for the continuation of his contract of employment, and
(b) otherwise, the tribunal shall make no order.
(9) If on the hearing of an application for interim relief the employer—
(a) fails to attend before the tribunal, or
(b) states that he is unwilling either to reinstate or re-engage the employee as mentioned in subsection (3),
the tribunal shall make an order for the continuation of the employee's contract of employment.
130.— Order for continuation of contract of employment.
(1) An order under section 129 for the continuation of a contract of employment is an order that the contract of employment continue in force—
(a) for the purposes of pay or any other benefit derived from the employment, seniority, pension rights and other similar matters, and
(b) for the purposes of determining for any purpose the period for which the employee has been continuously employed,
from the date of its termination (whether before or after the making of the order) until the determination or settlement of the complaint.
(2) Where the tribunal makes such an order it shall specify in the order the amount which is to be paid by the employer to the employee by way of pay in respect of each normal pay period, or part of any such period, falling between the date of dismissal and the determination or settlement of the complaint.
(3) Subject to the following provisions, the amount so specified shall be that which the employee could reasonably have been expected to earn during that period, or part, and shall be paid—
(a) in the case of a payment for any such period falling wholly or partly after the making of the order, on the normal pay day for that period, and
(b) in the case of a payment for any past period, within such time as may be specified in the order.
(4) If an amount is payable in respect only of part of a normal pay period, the amount shall be calculated by reference to the whole period and reduced proportionately.
(5) Any payment made to an employee by an employer under his contract of employment, or by way of damages for breach of that contract, in respect of a normal pay period, or part of any such period, goes towards discharging the employer's liability in respect of that period under subsection (2); and, conversely, any payment under that subsection in respect of a period goes towards discharging any liability of the employer under, or in respect of breach of, the contract of employment in respect of that period.
(6) If an employee, on or after being dismissed by his employer, receives a lump sum which, or part of which, is in lieu of wages but is not referable to any normal pay period, the tribunal shall take the payment into account in determining the amount of pay to be payable in pursuance of any such order.
(7) For the purposes of this section, the amount which an employee could reasonably have been expected to earn, his normal pay period and the normal pay day for each such period shall be determined as if he had not been dismissed."
The hearings in the EAT
"This is for two cumulative reasons. The first is that, in my view, taken in the round, the procedural/remedies features of discrimination/victimisation cases are no less favourable than the relevant features of s 103A claims. The second is, that even if I am wrong on the first point, the proviso applies, namely that the equivalence principle is not infringed because, even if the procedures/remedies for discrimination/victimisation claims are less favourable than for s 103A claims, they are not less favourable than for another similar action of a domestic nature, namely a claim for "ordinary" unfair dismissal, which does not have provision for interim relief."
The issues under the ECHR
"In order to establish that different treatment amounts to a violation of article 14 , it is necessary to establish four elements. First, the circumstances must fall within the ambit of a Convention right. Secondly, the difference in treatment must have been on the ground of one of the characteristics listed in article 14 or "other status". Thirdly, the claimant and the person who has been treated differently must be in analogous situations. Fourthly, objective justification for the different treatment will be lacking.
It is not always easy to keep the third and the fourth elements entirely separate, and it is not uncommon to see judgments concentrate upon the question of justification, rather than upon whether the people in question are in analogous situations. Lord Nicholls of Birkenhead captured the point at para 3 of R (Carson) v Secretary of State for Work and Pensions  1 AC 173. He observed that once the first two elements are satisfied:
'the essential question for the court is whether the alleged discrimination, that is, the difference in treatment of which complaint is made, can withstand scrutiny. Sometimes the answer to this question will be plain. There may be such an obvious, relevant difference between the claimant and those with whom he seeks to compare himself that their situations cannot be regarded as analogous. Sometimes, where the position is not so clear, a different approach is called for. Then the court's scrutiny may best be directed at considering whether the differentiation has a legitimate aim and whether the means chosen to achieve the aim is appropriate and not disproportionate in its adverse impact'."
"184. In my judgment, the relevant status is the "other status" of being an individual who wishes to bring a claim of dismissal/victimisation arising from dismissal, rather than the core status of gender. Applying the law as I summarised it in Leighton, the status of being a litigant in such a claim, or someone who wishes to bring such a claim, is capable of being an "other status". It is similar to the category of "persons who have brought a claim for discrimination in the County Court" which I held in Leighton to be a valid "other status" (see Leighton at paragraph 183). On the other hand, I do not think that the core status of gender is a relevant status for the purposes of these proceedings. The problem about which the Appellant claims - not being able to claim interim relief - is not specific to women, as it applies to anyone with any protected characteristic who wishes to bring a claim for discrimination/victimisation arising from dismissal. As I have said, every person has at least a few protected characteristics and so is potentially a person who might wish to bring a claim for discrimination/victimisation relating to dismissal. Mr Milsom submitted that being female was a core status because women are more likely to need to bring a discrimination complaint. He submitted that there is a passage in Baroness Hale's judgment in the UNISON case, at paragraphs 125-130, which shows that if women bring the majority of discrimination claims, then anything that is detrimental to such claims is indirectly discriminatory against women. I am not sure that the passage relied upon, which was obiter, goes that far, but in any event, I do not need to resolve the matter because I have found that the Appellant has a status for the purpose of Article 14."
185. Mr Milsom suggested that the difference between a core status and an "other status" may matter, because the test for justification is stricter where a core status is concerned. This is because of what Lord Walker described as the "concentric circles" of statuses warranting protection under Article 14, in R (RJM) v SSWP  UKHL 63,  1 AC 311: the rigour of the test for justification varies from status to status. However, in my judgment the standard of scrutiny would be essentially the same, whether the relevant status is gender or whether consists of claimants in discrimination/victimisation cases. Although it is not a core status, such claimants have an important status, since they are seeking to enforce fundamental rights."
"186. In my judgment, this is the paradigm type of case of the sort identified by Lady Black in Stott and Lord Nicholls in Carson, in which it would be artificial to look at the question of whether claimants in discrimination/victimisation claims are in an analogous situation with those who have s103A claims separately from the question of justification. In other words, the real question is whether there are differences between the two categories of claims which justify the availability of interim relief for one but not the other.
187. As Mr Milsom submits, what needs to be justified is the difference in treatment: see AL (Serbia) v Secretary of State for the Home Department  UKHL 42;  1 WLR 1434, at paragraph 38.
188. As for the standard of scrutiny, this is a matter on which submissions from counsel for the Government would have been welcome. This is not an issue which is concerned with public expenditure. It is to some extent concerned with the allocation of public resources, in that the extension of interim relief to some discrimination/victimisation cases will have an impact upon the Employment Tribunal system, in that it will increase the case-load. It involves a matter of political judgment. There has been much debate in recent case-law about whether the appropriate test is the conventional proportionality test (is it a proportionate means of achieving a legitimate aim?) or the stricter test pursuant to which the court will not interfere unless the treatment is manifestly without reasonable proportion. However, in my judgment, this is a case in which there is no material difference between the application of the conventional proportionality test, giving appropriate weight to and respect to the judgment of the executive or legislature, and the "manifestly without reasonable foundation" test (see R (Drexler) v Leicestershire CC  EWCA Civ 502, at paragraph 76, and R (Adiatu) v HM Treasury  EWHC 1554, at paragraph 62).
189. In any event, the question of what standard of justification is applicable in this case is moot, because, whatever it is, no justification is established, or even put forward. The burden is on the respondent, or the Government if it has intervened, to put forward the aim that the difference in treatment is directed towards, and then to show that the means adopted is proportionate. The Government has not intervened and so has not put forward any justification. Frankly, and entirely properly, Mr McHugh on behalf of the Respondent has said that he is not in a position to advance any particular justification. His client is a private sector business which has no reason to be privy to the reasons why interim relief is available for some employment claims but not for others.
190. In these circumstances, I do not think that it is appropriate for me to speculate about what potential justifications there might be. I have set out a number of considerations at paragraphs 151-158 of this judgment which may or may not be the reasons for the availability of interim relief for s103A cases, but not discrimination/victimisation cases, and which may or may not mean that the difference in treatment is proportionate. It may be relevant, when evaluating any potential justifications, that the procedures and remedies for discrimination/victimisation claims arising from dismissal provide an effective remedy, even without interim relief. But, as I said in that section of this judgment, I am not in a position to evaluate the potential justifications, at least not without assistance from submissions and perhaps evidence on behalf of the Government.
191. It follows that I am not saying that the difference in treatment is incapable of justification. Rather, the position is that, through no fault of its own, the Respondent has been unable to satisfy the burden of justifying the difference in treatment for Article 14 purposes. In the absence of a justification being put forward, the breach is established: see Gilham, at paragraphs 36 and 37.
192. It follows that the Appellant has succeeded in establishing that the difference in treatment relating to interim relief as it affects those who bring a claim, or who wish to bring a claim, in relation to discrimination/victimisation arising from dismissal, and those who bring a claim or who wish to bring a claim for automatic unfair dismissal under ERA s103A, is a breach of ECHR Article 14, when read with Article 6."
"193. … The only potential remedy that the EAT could grant would be to read words into the EA 2010 in a way which reversed the effect of the breach of Article 14, in order to give the domestic legislation a conforming interpretation in accordance with the HRA, section 3. However, as section 3 states, a conforming interpretation can only be adopted "so far as it is possible to do so". For the reasons given earlier in this judgment, I have taken the view that it is not possible for a conforming interpretation to be applied to the ERA 2010, because that would cross the line between interpretation and quasi-legislation, and because to do so would require the EAT to take decisions for which it is not equipped and would give rise to important practical repercussions which the EAT is not equipped to evaluate.
194. It follows that I must dismiss the Appellant's appeal relating to Article 14 of the ECHR.
195. For the reasons that are set out in this judgment, the Appellant's appeal is dismissed. The Claimant has sought permission to appeal to the Court of Appeal on the ECHR point. Since I have held that there has been a breach of Article 14, it is appropriate to grant permission to appeal so that the Court of Appeal may have the opportunity to consider this issue and, if considered appropriate, grant the declaration of incompatibility which the EAT does not have jurisdiction to grant. Accordingly, I have granted permission to appeal."
The appeal to this court
"The appellant seeks permission to appeal in relation to the Article 14 ECHR ground. I concluded that there had been a breach of Article 14, but that it was not possible to grant relief for this breach because:
a) it was not possible to apply a conforming interpretation to the Equality Act 2010 so as to read in a right to claim interim relief for claimants in discrimination/victimisation claims arising from dismissals; and
b) the EAT does not have the power to grant a declaration of incompatibility.
I have granted permission to appeal so that the Court of Appeal can consider the Article 14 issue and, if the court finds there to be a breach, the Court can consider whether to make a declaration of incompatibility. This appeal raises a point of law of general public importance.
For the avoidance of doubt I grant permission not only so the Court of Appeal can consider whether to make a declaration of incompatibility but also so that the court can consider the other two grounds raised in the application for PTA, namely whether the relevant status for the purposes of the Article 14 challenge is sex, and whether it is possible to apply a conforming interpretation to the Equality Act 2010.
Finally, as explained in the judgment, I did not hear full argument on the potential justification, if any, for the difference in treatment, as regards interim relief, between discrimination/victimisation claims concerning dismissals and s.103A claims for unfair dismissal arising from protected disclosures. The Government Equalities Office was given the opportunity to intervene in the appeal to the EAT but did not do so. Given the wide general importance of this case the parties should make contact once again with the Government Legal Department so as to provide the GLD with a copy of this judgment and order and to give the GLD and the Government Equalities Office the opportunity to consider whether they wish to apply to intervene at the Court of Appeal stage."
The grounds of appeal
i) The subject matter of the case does not fall within the ambit of a substantive Convention right and accordingly Article 14 does not apply;
ii) The Appellant was not treated differently on any prohibited ground within the meaning of Article 14;
iii) The Appellant and her comparator (a hypothetical dismissed whistleblower) are not in analogous situations;
iv) The absence of a right to seek interim relief in a claim under the 2010 Act is justified;
Mr Purchase also submitted that it is not possible to read down the relevant legislation so as to confer such a right.
"In none of the cases did the ECtHR say that article 8 was engaged by the mere fact of dismissal but rather it went on to consider whether the consequences of that particular dismissal made article 8 applicable (in Volkov the effect on the applicant's reputation of dismissal for breaching the judicial oath; in the IB case the stigmatisation and impact on the applicant's private life; in Boyraz the effect on the applicant's identity, self-perception and self-respect; in Sidabras the stigma, the impact on creating future social relations and the difficulty of obtaining future employment)."
"The first question is whether discrimination by reference to whether or not someone has started legal proceedings is covered by article 14 at all. In R (S) v Chief Constable of the South Yorkshire Police  UKHL 39;  1 WLR 2196, 2213, paras 48-49, Lord Steyn (with the agreement on this point of all other members of the House) said that article 14 required discrimination to be by reference to some status analogous with those expressly mentioned, such as sex, race or colour. (See also Kjeldsen, Busk Madsen and Pedersen v Denmark (1976) 1 EHRR 711, 732-733, para 56.) Being a person who has started legal proceedings does not readily appear to qualify as a status."
"As to the argument that the characteristic needs to be analogous to those listed in Article 14, this is difficult to pursue too far in the light of the ECtHR's acceptance that a prison sentence of a particular length can be within the Article. I have no difficulty in accepting that when considering an as-yet unconsidered characteristic a court will have in mind the nature of the grounds it was thought right to list specifically, but the case law that the court cited in Clift v United Kingdom demonstrates a strict ejusdem generis interpretation would be unduly restrictive."
She added in the next paragraph:
"Although not open-ended, the grounds within Article 14 are to be given a generous meaning".
"Although the language and the framework might be slightly different, it seems to me that the four Acts [the Public Interest Disclosure Act 1998, which introduced remedies in whistleblowing cases, the Sex Discrimination Act 1975, the Race Relations Act 1976, and the Disability Discrimination Act 1995] are dealing with the same concept, namely, protecting the employee from detriment being done to him in retaliation for his or her sex, race, disability or whistle-blowing. This is made explicit by the long title to the Public Interest Disclosure Act 1998, which is, as I have already set out: "An Act to protect individuals who make certain disclosures of information in the public interest; to allow such individuals to bring action in respect of victimisation." All four Acts are, therefore, dealing with victimisation in one form or another. If the common theme is victimisation, it would be odd indeed if the same sort of act could be victimisation for one purpose, but not for the other."
"I would add that if Mr Stilitz [counsel for the employer] were right the scheme of protection for whistleblowers will be less effective than for victims of other kinds of discrimination and victimisation at work. As noted at para 33 above, under the 2010 Act dismissal is simply another form of detriment for which both the employer and any responsible co-workers are potentially liable: claims are commonly brought against individuals as well as employers, and occasionally it is the individual who ends up having to pay, either because the employer is insolvent or because it has established a reasonable steps defence. That point is not in itself decisive because (again, as noted above) there is a limit to the extent to which it is right to try to assimilate the two schemes; but the two situations are nevertheless essentially similar and, other things being equal, one would expect Parliament to have intended to follow the same substantive approach in each." [emphasis added]
"'The thinking behind the association of protected disclosure and discrimination is that both causes of action involve acts or omissions for a prohibited reason. Unfair dismissal and discrimination on prohibited grounds are, however, different causes of action. The statutory structure of the unfair dismissal legislation is so different from that of the discrimination legislation that an attempt at cross fertilisation or legal transplants runs a risk of complicating rather than clarifying the legal concepts.'
Less favourable treatment: the package principle
"Less favourable treatment is not, of course, established merely because the procedure for one type of claim contains a restriction or condition which is absent from the procedure for another type of claim. It is common to find that different claims are subjected to a package of procedural requirements, such that some of those affecting claim A are less favourable, but others more favourable than those affecting claim B."
(1) Time limits. Although the primary time limit is the same, three months from dismissal, the discretion to extend time for bringing claims for discrimination/victimisation when the tribunal considers it just and equitable to do so is considerably more favourable to claimants than the "reasonably practicable" test applicable in unfair dismissal cases (though I note Mr Milsom's point that an interim relief claim must be launched within seven days of the dismissal);
(2) Burden of proof. In a discrimination/victimisation case, the shifting burden of proof provided for by EA s 136 applies. In Kuzel v Roche Mummery LJ regarded it as a more favourable burden for claimants than the burden that applies in unfair dismissal cases;
(3) The reason for dismissal. In a s 103A case, the claimant must show that the protected disclosure is the reason or principal reason for the dismissal. In a discrimination case the question is whether the protected characteristic or act was an 'effective cause';
(4) Third party liability. In a discrimination case, a claim can be brought against an individual who may be jointly and severally liable with the employer. In a claim for unfair dismissal brought under s 103A, this is not possible, although a claim can be brought under s 47B against an individual for causing detriment, as shown in Timis v Osipov;
(5) Injury to feelings. A payment for injury to feelings may be made in a discrimination/victimisation case, but no such payment is available in an unfair dismissal claim, whether whistleblowing or "ordinary". See Dunnachie v Kingston upon Hull City Council  UKHL 36,  IRLR 727;
(6) Contributory fault. A deduction for contributory fault may be made in a s 103A case (ERA, s 123(6)), but it is not clear whether a deduction for contributory fault may be made in a discrimination/victimisation claim, or at least whether the circumstances in which such a deduction may be made are as broad as they are in unfair dismissal cases.
"Taking into account all of the various procedural/remedies features of discrimination/victimisation claims and of s103A claims, including interim relief, in my judgment it is not the case that the procedural/remedies requirements of discrimination and victimisation cases are less favourable than those that apply to s103A claims. Whilst the right to claim interim relief is a real benefit, it does not, in my view, outweigh the procedural and remedies advantages of discrimination/victimisation claims, as described above. It is necessary to take a practical and realistic approach to this comparison. If this is done, then, in my opinion, the features of discrimination/victimisation claims which are more favourable to claimants are considerably more valuable in practice than the countervailing features of s103A claims."
"…even in a field such as access to justice and legal costs the court, while being vigilant to protect fundamental rights, must give considerable weight to informed legislative choices, at least where state authorities are seeking to reconcile the competing interests of different groups in society".
Lady Justice Elisabeth Laing:
Lord Justice Warby: