Supreme Court dismisses appeal alleging UK government failed to provide effective remedies for enforcing workplace harassment claims

The UK Supreme Court has dismissed an appeal by a woman who alleged that the UK government failed to properly implement two EU Directives on protection against workplace discrimination.

The appellant, Ms Anwar, originally brought judicial review proceedings before the Court of Session after being unable to enforce an award of over £74,000 from the Employment Tribunal against her former employer. The petition was opposed by the Advocate General for Scotland representing the Secretary of State for Business, Energy and Industrial Strategy.

The appeal was heard by Lord Hodge, the Deputy President of the Supreme Court, along with Lord Lloyd-Jones, Lord Briggs, Lord Leggatt, and Lord Burrows. Aidan O’Neill QC and Scott Blair appeared for the appellant, with David Johnston QC and John MacGregor QC appearing for the respondent. An intervention was made in the case by the Equality and Human Rights Commission, who were represented by Christine O’Neill QC.

Transfer of funds

In 2015, the appellant raised an action against her former employer, a charity, in the Employment Tribunal alleging that she had been subject to harassment at work on the grounds of her sex, race, and religion. The tribunal upheld her claim and made an award against her employer and its executive director for £74,647.96., which the charity’s financial records indicated it would be able to pay.

Following the tribunal’s decision, the appellant received information that there had been a proposal to close down the charity and transfer its funds to a new one. Believing this to be an attempt to avoid paying the award, she took steps to prevent her employer from disposing of its funds, but by October 2016 the charity’s account had gone from being over £68,000 in credit to about £4,000.

The appellant then raised a petition for judicial review on the grounds that she ought to have had the power to apply for a warrant for the interim remedy of arrestment of funds on the dependence of an application to the ET, thus giving her the ability to have her employer’s bank account frozen and prevent any dissipation of funds. Her argument was founded on two EU Directives from 2000 and the general principle of EU law obliging member states to provide effective remedies for the implementation of EU law-based rights.

In 2018, the Lord Ordinary refused the petition for judicial review, holding that it was competent to raise an action in the sheriff court for diligence on the dependence, and that the requirement to raise a separate action in the sheriff court did not render the appellant’s exercise of her EU rights practically impossible or excessively difficult. The Inner House upheld this decision on appeal, leading the appellant to make a further appeal to the Supreme Court.

Counsel for the appellant renewed the submission that the Court of Session and the sheriff court did not have the power to grant a warrant for diligence on the dependence in any case where they do not have jurisdiction to hear and determine the merits and substance of the dispute. Further, the requirement to raise additional proceedings in the sheriff court was in breach of the principles of effectiveness and effective judicial protection as enshrined in Article 19(1) of the TEU.

Modest departure

Delivering the lead judgment, with which the other four judges agreed, Lord Hodge said of the jurisdiction issue: “In my view the Court of Session and the sheriff court have jurisdiction to hear an action which is ancillary to other proceedings and to grant a warrant for diligence on the dependence of that ancillary action, thereby in substance providing security for the claim in the other proceedings.”

He continued: “While it is unnecessary for a complainant who has an order for payment from an employment tribunal to seek a court order for its enforcement, and a judge might refuse to grant such an order for that reason, there is no reason why the court could not competently grant such an order.”

Turning to the argument that it was excessively difficult to obtain a remedy, Lord Hodge noted generally: “It is important to bear in mind that diligence on the dependence, which freezes a defender’s bank account if an arrestment is used or which inhibits the defender’s ability to transact with his or her heritable property if an inhibition is used, is a draconian remedy. It was for that reason that the availability of the remedy as of right was criticised in [a] Report of the Scottish Law Commission and it was held to be unlawful by the Court of Session in Karl Construction Ltd v Palisade Properties Plc (2002) because it did not respect the ECHR rights of the defender.”

On whether it was overly onerous on the appellant to raise further proceedings beyond the Employment Tribunal in order to enforce her claim, he said: “The benefits of being able to present a claim in a flexible and relatively informal forum without requiring legal representation, at moderate cost, and without exposure to adverse awards of expenses are important attributes of the employment tribunal system.”

Lord Hodge concluded on this issue: “I agree with Mr Johnston that the requirement to raise [additional] proceedings in the sheriff court to obtain diligence on the dependence, including the possible exposure of the claimant to an adverse award of expenses, is a modest departure from that favourable regime. Having regard to the potential of such diligence to disrupt and even destroy the employer’s business by freezing its assets, I agree with Lord Drummond Young that that departure is proportionate.”

For these reasons, the appeal was refused. A further argument based on the principle of equivalence was also rejected by the court.

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