Employment Cases Update

Wisbey v Commissioner of the City of London Police & Anr [2021] EWCA Civ 650

Date published: 19/05/2021

Appeal against a failure to award the appellant a sum for injury to feelings after a successful claim of unlawful indirect discrimination. Appeal dismissed.

Throughout his employment as a police officer, (he was an authorised firearms officer ("AFO") and advanced driver), the appellant has had a form of defective colour vision. This has had no obvious effect on his ability to discharge his duties, but it led his employer, the respondent, to remove him from both his AFO role in March 2017 and later, from advanced driving duties as well. Following a series of further colour vision tests he was reinstated to both roles in February 2018. 8% of men and only 0.25% of women suffer colour vision defects. The appellant made a claim of unlawful indirect discrimination in the ET: the claim based on his removal as an AFO was dismissed, but his claim for unlawful indirect sex discrimination in removing him from rapid response driving was upheld. The Tribunal declined to make an award of compensation for injury to feelings in light of the evidence. It found that the unlawful indirect sex discrimination was unintentional in the sense that the respondent did not know, in applying the various colour vision requirements for driving to the appellant, that he would be put at a particular disadvantage as a man, and did not intend that consequence. The principal question raised by this appeal is whether the provision in the Equality Act 2010 dealing with remedies in a case of unintentional unlawful indirect discrimination is incompatible with EU law; and whether that incompatibility resulted in a failure to award compensation to the appellant, (who succeeded in establishing unlawful indirect discrimination), for injury to his feelings in this case.

The Court of Appeal dismissed the appeal. Having first considered the remedies of a declaration and a recommendation, there is no restriction or prohibition in section 124(5) on a tribunal's power to make a compensation order where loss is sustained as a consequence of established unlawful but unintentional indirect discrimination. If, after consideration, a tribunal decides that a declaration and a recommendation are appropriate, nothing in the terms of the statute precludes a tribunal from also awarding compensation, still less requiring a tribunal to reach a conclusion that loss sustained by reason of the unintentional indirect discrimination should nevertheless be uncompensated for that reason.

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