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EU law requires all member states to ensure that individuals suffering discrimination receive appropriate remedies, including compensation. If an employee wins a discrimination claim, section 124(2) Equality Act 2010 (EA) says that an employment tribunal can make a declaration (i.e. that the employee has been the victim of discrimination), order compensation or issue a recommendation to the employer (aimed at reducing the discriminatory effect on the employee). If there has been unintentional indirect discrimination, section 124(4) and (5) EA say that the tribunal must consider a declaration or recommendation first before deciding whether to order compensation. 

In Wisbey v City of London Police, the Court of Appeal has looked at whether section 124 provisions are compatible with EU law. The employee was a police officer who had a form of colour blindness. He was an authorised firearms officer. Despite his impairment having no obvious effect on work, in March 2017 he was removed from his firearms officer responsibilities as well as any advanced rapid response driving. In February 2018, after more tests, he was reinstated to these roles. He brought a claim for indirect sex discrimination against his employer. 8% of men suffer colour vision defects but only 0.25% of women. The employee argued that the requirement to pass certain colour vision tests put men at a disadvantage compared to women. In his evidence, the employee’s injury to feelings was linked to his ban from firearms work rather than the driving duties.

The employment tribunal said he had been indirectly discriminated against but only in relation to the removal from advanced driving and not firearms work. The tribunal did not award injury to feelings as it said the discrimination was unintentional – the employer didn’t know men would be disadvantaged in the tests and did not intend the consequences. The EAT did not uphold his appeal so he appealed to the Court of Appeal, saying that sections 124(4) and (5) EA were incompatible with European law. The Court of Appeal dismissed his appeal too. They said the requirement in those sections to consider remedies in a certain order did not make seeking compensation more difficult for an employee in relation to unintentional discrimination. The provisions don’t prioritise one remedy over another and doesn’t dissuade tribunals making awards. In any event, tribunals will usually make a declaration before awarding compensation anyway. In this case, the tribunal might have misdirected itself when it said no compensation was due because the discrimination had been unintentional. However that did not make the decision not to award compensation wrong in this case on the facts. It was the driving ban which was found to be indirectly discriminatory, and the employee’s evidence was that his feelings were injured by the firearms work ban, not the driving. On that basis, injury to feelings was not appropriate.

Find out how we can help.  Our partner, Jon Dunkley, heads the Wollens specialist Employment Department.  Contact him today for an informal chat, without obligation on 01271 342268 or via email at jon.dunkley@wollens.co.uk.