* United Kingdom, United Kingdom Employment Appeals Tribunal (UKEAT), 15 December 2020 UKEAT/0216/20/AT

Identification of the case

• Freedom to choose an occupation and right to engage in work (art. 15 CFREU)
• Right to an effective remedy and to a fair trial (art. 47 CFREU)

• Employment Rights Act 1996
• Equality Act 2010

• Recast Equal Treatment Directive
• Charter of Fundamental Rights of the European Union

Summary of the case

The Appellant was employed by Stormsure Ltd. (Respondent) between 12 March 2020 and 15 July 2020. In June 2020, the Appellant complained to the Respondent that she had been sexually harassed by a co-worker. The Appellant claimed that this complaint had not been properly investigated. The Appellant also requested to work from home in order to be protected from future instances of harassment. On 9 July 2020, the Appellant was informed by the Respondent that her working hours were to be reduced to 60% of the normal load, citing the Appellant’s childcare responsibilities. Moreover, the Respondent instructed the Appellant to install monitoring software to supervise her productivity. The Appellant alleged that this change in her working conditions constituted either an express, or a constructive dismissal, which according to her amounted to sex discrimination and victimisation for having done an act (reporting sexual harassment and deciding to work from home) protected by the Equality Act 2010. On 30 July 2020, the Appellant approached the Employment Tribunal (ET), seeking interim relief for both a sex discrimination/victimisation claim, and a whistleblowing claim. On the same day an interim relief hearing was granted, but only with regard to the whistleblowing claim, and not the sex discrimination/victimisation claim. On 6 August 2020, the Appellant filed a Notice with the Employment Appeals Tribunal (EAT, present court) to have her sex discrimination/victimisation claim and two procedural claims heard, with permission to appeal being granted on the present point of law only.

• Civil judicial enforcement

Grant of interim relief for a protected act not subject to interim relief according to UK legislation, whereas this should be granted in case of a finding of applicability of horizontal direct effect of certain EU fundamental rights, including the right to an effective remedy and fair trial (Article 47 CFREU) and compliance with the European Convention on Human Rights.

The EAT recalled the procedural history of the case and summarised the concept of interim relief and its legal bases in UK law, recalling especially its importance for safeguarding trade union activities. The Tribunal also recalled the available remedies for discrimination and victimisation, paying particular attention to the Equality Act 2010. Turning to the relevant provisions and principles of EU law, the Tribunal recalled the Recast Equal Treatment Directive, the CFREU, and the principles of effectiveness and equivalence.

Subsequently, the Tribunal addressed whether the EU law principle of effectiveness was violated by the absence of interim relief for discrimination/victimisation claims. After discussing the nature of interim relief and considering the parties’ submissions, the judge determined that the principle of effectiveness was not violated. The Tribunal argued that in case of a successful claim, a claimant receives the remedies of declaration, compensation and recommendation under UK law, and that the delay of associated hearings was not significant enough to justify a claim to interim relief, which is additionally not explicitly required by the principle of effectiveness. Relying especially on the case of Arjona Camacho v Securitas Seguridad España SA (C-407/14), where the CJEU held full compensation to satisfy the requirement of effective remedy, the EAT found no violation of the principle of effectiveness in the absence of interim relief for sex discrimination/victimisation claims.

Next, the EAT considered whether the absence of interim relief constituted a violation of the principle of equivalence. The Tribunal found that procedural and remedial requirements were even more favourable than in comparable whistleblowing cases, and as such, that the principle of equivalence was likewise not violated, even after supplementary examination in light of the UK case Totel Ltd v Revenue and Customs Commissioners [2018] UKSC 44; [2018] 1 WLR 4053, which put into use the “no most favorable treatment Proviso” (para. 36). Due to the contentious nature of this claim, the Tribunal subsequently assessed whether the Marleasing principle could be used to read the principle of equivalence into UK law, deciding that a conforming interpretation was not possible. It found that because of the incorporation of fundamental EU law principles and the CFREU into UK law, the principles alone could not be relied upon by the Appellant.

As regards the Appellant’s claim under Article 14 ECHR, read in conjunction with Articles 6 and 8 and Article 1 of Protocol 1 to the ECHR, the EAT found that a conforming interpretation was likewise not possible, and that the Tribunal was not equipped to decide on incompatibility of domestic law with the ECHR in the first place. However, it identified that UK legislation did place discrimination/victimisation victims at a disadvantage as compared to those who suffered unfair dismissal. Accordingly, it granted the Appellant permission to appeal to the UK Supreme Court on the question of Article 14 ECHR.

Role of the Charter and role of the general principles on enforcement

The Appellant claimed that the non-granting of interim relief in relation to sex discrimination/victimisation amounted to a violation of her rights enshrined in Article 15 (freedom to choose an occupation and right to engage in work) and Article 47 (right to an effective remedy and a fair trial) CFREU. Relying on the CJEU’s judgments in Mangold v Helm (C-144/04) and Kucukdeveci v Sweden GmbH & Co KG (C-555/07), the EAT noted that in addition to the Charter, a general principle of non-discrimination must be given effect under EU law. However, the EAT did not find fundamental principles of EU law, or the Charter, applicable in the present case, citing the recognition of the general principle of non-discrimination in the Equality Act 2010. The principles of effectiveness and equivalence were relied upon instead. Moreover, the EAT rejected a possible expansion of the scope of fundamental principles of EU law to the extent that deferring procedural rules and remedies in discrimination cases on the national level would be prohibited.

• Explicit reference to Art. 47, CFREU (right to an effective remedy and a fair trial)
• Right to an effective remedy before a tribunal
• Explicit reference to Art. 6 ECHR

Employment Rights Act 1996

Section 103A. Protected disclosure

An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee made a protected disclosure.

Equality Act 2010

Section 39. Employees and applicants

(2) An employer (A) must not discriminate against an employee of A's

(B)—

(c) by dismissing B;

(4) An employer (A) must not victimise an employee of A's (B).

(c) by dismissing B.

Although the EAT acknowledges the reasoning behind the Appellant’s invocation of Articles 15 and 47 CFREU, ultimately these were not held to be relevant in the present case. The reasoning for this is that the principles of equivalence and effectiveness have been satisfied through the implementation of equality-related directives into UK legislation. In essence, domestic legislation is judged to provide an effective remedy in cases of sex discrimination/victimisation, and fundamental rights are judged to require no more than a set standard of effectiveness and equivalence, which the relevant domestic legislation satisfies. As regards the alleged violation of Article 14 ECHR, read inter alia in conjunction with Article 6 ECHR, the EAT likewise acknowledged a link between the present articles and the question of law. However, the EAT is not empowered to make a declaration of (in)compatibility of domestic legislation with ECHR provisions, and accordingly did not grant any relief for the alleged breach. The determination of relevance of Article 14 ECHR was therefore left to the Court of Appeal.

• Equivalence
• Effectiveness

In the present case, the EAT based its judgment, to a very significant extent, on an assessment of the principle of equivalence. Its significance is also underscored by the fact that adherence to the principle of equivalence leaves the Member State with the choice of procedural instruments and remedies – to this end, the EAT relied on the CJEU’s judgment in Preston and Others v Wolverhampton NHS Trust and Others (C-79/98) as well as the case of Chief Constable of the Police Service of Northern Ireland v Agnew and Others [2019] NICA 32; [2019] IRLR 782, at the material time under appeal at the UK Supreme Court.

The EAT argued that first, appellate courts have long been emphasising the similarities between whistleblowing and discrimination claims, as shown in the UK cases Woodward v Abbey National (No 1) [2006] EWCA Civ 822; [2006] ICR 1436, Eszias v North Glamorgan NHS Trust [2007] EWCA Civ 330, and Timis v Osipov [2018] EWCA Civ 3281; [2019] ICR 655. Second, the EAT also emphasised that the test for equivalence can be passed even if the causes of action differ, as demonstrated by the UK cases of Preston (No 2) [2001] 2 AC 455, Revenue and Customs Commissioner v Stringer [2009] UKHL 31; [2009] ICR 985, Agnew, and the CJEU case Pontin v T-Comalux SA (C-63/08).

These two propositions were relied upon by the EAT, leading to the conclusion that procedural and remedial requirements for discrimination/victimisation claims in UK legislation were in fact comparable, if not more favourable to claimants in discrimination than whistleblowing cases, with the more generous time limits being deemed especially relevant. As such, the principle of equivalence was satisfied. The EAT admitted that even if this was an incorrect reading of the principle, then the “no most favourable treatment Proviso,” expressed in paragraph 36 of the UK case Totel, would nevertheless confirm compatibility with the principle of equivalence.

Similar to the principle of equivalence, the EAT also started its assessment of the fulfilment of the principle of effectiveness with the freedom enjoyed by Member States to choose procedural and remedial means, provided that the principle of effectiveness is satisfied, as laid out in Preston and Others v Wolverhampton NHS Trust and Others (C-79/98).

Stating that a provision for interim relief is not required by EU law in order to satisfy the principle of effectiveness, basing its discussion inter alia on the various forms and consequences of discrimination that are capable of arising in the workplace, the EAT found full compensation with interest, provided after a final hearing, to be satisfactorily in line with the principle of effectiveness. To that end, the EAT relied on the CJEU cases of Sabine von Colson and Elisabeth Kamann v Land Nordrhein-Westfalen (C-14/83), Marshall (No 2) (C-271/91) and, in relation to the Recast Directive, Arjona (C-407/14). The consequence of this finding was that the presence of sufficient end remedies did not render the absence of interim relief in cases of sex discrimination/victimisation incompatible with the principle of effectiveness.

Elements of judicial dialogue

• Dialogue among same level national courts within the same Member State

• Dialogue between high court - lower instance court at national level

• CJEU C-78/98, Preston and Others
• CJEU C-271/91, Marshall (No 2)
• CJEU C-407/14, Arjona Camacho
• CJEU C-63/08, Pontin
• CJEU C-106/89, Marleasing SA
• CJEU C-144/04, Mangold
• CJEU C-555/07, Kücükdeveci
• CJEU C-213/89, R, ex parte Factortame and Others

• Baczkowski v Poland (2009) 38 EHRR 19

Conform interpretation with EU law as interpreted by the CJEU In this respect, the EAT assessed whether fundamental rights of EU law, as well as Articles 15 and 47 CFREU, were to be read into the Equality Act 2010 as having horizontal direct effect, as alleged by the Appellant. However, the EAT relied upon the interpretation of EU law by the CJEU to conclude that the application of a conforming interpretation to the domestic legislation in question was not possible, as this would stray into the area of quasi-legislation by the EAT.

To determine whether the Appellant’s invocation of EU Fundamental Rights as protected by the CFREU had merit, in light of the compliance of national legislation with the principles of equivalence and effectiveness.

Dismissal of the present appeal by the EAT on the grounds that the principles of equivalence and effectiveness were satisfied. Judgment appealed further at the UK Court of Appeal.

Additional notes on the decision

The UK Court of Appeal confirmed, in a subsequent ruling, that there was no right to interim relief in sex discrimination/victimisation cases.

The Court of Appeal Case: S.S. v Stormsure Ltd. [2021] EWCA Civ 887 6 WLUK 137