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Unintentional Indirect Discrimination

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Are the provisions of the Equality Act 2010 dealing with remedies for unintentional unlawful indirect discrimination compatible with EU law?

Yes, held the Court of Appeal in Wisbey v The Commissioner of the City of London Police and College of Policing.

The Claimant is a police officer with defective colour vision (which is far more prevalent in men than women). Due to his condition, he had been temporarily restricted from firearms duties and from advanced driving. A tribunal found that only the restriction of driving duties was unjustified indirect sex discrimination, but it was unintentional.

Applying s124 Equality Act 2010, the remedies available were a declaration, compensation and a recommendation. But if indirect discrimination is unintentional, compensation is only to be awarded after first considering making a declaration and/or a recommendation. The tribunal made a declaration but no recommendation, as the driving ban had been lifted, it then declined to award compensation for injury to feelings.

The appeal was based on s124 being incompatible with EU law and Convention rights, as not providing an effective remedy nor dissuading employers from discriminating. The Court disagreed, holding that requirement to consider a declaration and/or a recommendation first is simply a procedure, it does not prioritise or emphasise one remedy over another. It is not an obstacle to awarding compensation where it is due, the court noted that "if loss or damage have been sustained as a consequence of the indirect discrimination suffered, it is to be expected that compensation will be awarded".

Thanks to Ed McFarlane of Law at Work for preparing this case summary.