Compatibility of Equality Act 2010 Remedies with EU Law Affirmed in Wisbey v. Commissioner of the City of London Police

Introduction

The case of Wisbey v. Commissioner of the City of London Police & Anr ([2021] EWCA Civ 650) represents a significant judicial examination of the remedies provided under the Equality Act 2010 (EA 2010) in the context of unintentional unlawful indirect discrimination. This Court of Appeal decision delves into whether specific provisions of the EA 2010 align with overarching EU laws, including the Recast Directive, the Charter of Fundamental Rights, and the European Convention on Human Rights. The appellant, Mr. Wisbey, a male police officer with a color vision defect, challenged the adequacy of the remedies available for indirect sex discrimination, asserting that the current legislative framework impedes effective compensation for such discrimination.

Summary of the Judgment

Mr. Wisbey, employed as an authorized firearms officer (AFO) and later as an advanced driver within the City of London Police, was removed from these roles due to a color vision defect. This removal led him to allege indirect sex discrimination, given the higher prevalence of color vision defects among males. While the Employment Tribunal upheld his claim regarding driving duties, it denied compensation for injury to feelings, deeming the discrimination unintentional. The primary focus of the appeal was to assess whether the EA 2010's remedy provisions (sections 124(4) and (5)) are compatible with EU law. The Court of Appeal ultimately upheld the Tribunal's decision, affirming that the legislative provisions do not hinder the awarding of compensation and are in harmony with EU directives and rights enshrined in European laws.

Analysis

Precedents Cited

The judgment references several pivotal cases and directives that have shaped the discourse on indirect discrimination and the adequacy of remedies:

• Ingledew v Chief Constable of West Midlands Police: An Employment Tribunal decision that previously examined indirect sex discrimination in color vision testing for armed officers, ultimately upholding the test requirements as justified.
• JH Walker Ltd v Hussain (1996) IRLR 11: Established that in cases of indirect discrimination, intention differs from motive, focusing on whether the employer knew the consequences of their actions.
• London Underground v Edwards (1995) IRLR 355: Highlighted indirect sex discrimination involving shift patterns disadvantaging single female workers.
• Levez v TH Jennings (1999) IRLR 36: Determined that caps on compensation for discrimination claims violate EU requirements for effective remedies.
• Marshall v South West Area Health Authority (1993) IRLR 445: Emphasized that compensation must fully restore equality affected by discriminatory actions.

Additionally, the judgment references Council Directive 2006/54/EC (Recast Directive), which harmonizes laws concerning gender equality, and articles from both the Charter of Fundamental Rights and the European Convention on Human Rights that underpin the right to effective remedies against discrimination.

Legal Reasoning

Central to the Court’s decision was the interpretation of sections 124(4) and (5) of the EA 2010, which pertain to remedy provisions in cases of indirect discrimination proven to be unintentional. The appellant argued that these sections impose an undue barrier to awarding compensation by mandating prior consideration of declarations and recommendations before any compensatory measures. However, the Court held that:

• The language of the EA 2010 does not restrict the awarding of compensation but merely outlines the procedural steps a tribunal must follow.
• The requirement to consider declarations and recommendations does not preclude compensation; tribunals retain discretion to award compensation where appropriate.
• The legislative intent behind sections 124(4) and (5) was not to limit remedies but to ensure a holistic approach to addressing discrimination impacts.

The Court further examined the compatibility of these provisions with the Recast Directive and found no infringement. It emphasized that the EA 2010, as interpreted, facilitates effective remedies in line with EU standards by allowing adequate compensation that is both "dissuasive and proportionate."

Impact

This judgment reinforces the integrity of the Equality Act 2010's remedy framework, ensuring it aligns with EU principles of effective and adequate compensation for discrimination. For practitioners and individuals pursuing discrimination claims, the decision clarifies that the procedural requirements under the EA 2010 do not hinder the ability to obtain compensation for injury to feelings in cases of unintentional indirect discrimination. Furthermore, it underscores the necessity for tribunals to meticulously evaluate all remedies, ensuring that compensation is considered where appropriate, thereby maintaining both the efficacy and the deterrent nature of discrimination laws.

Complex Concepts Simplified

Indirect Discrimination

Indirect discrimination occurs when a seemingly neutral policy or practice disproportionately disadvantages a particular group sharing a protected characteristic (e.g., sex) compared to others. In this case, the color vision tests inadvertently affected male officers more due to the higher prevalence of color vision defects among men.

Sections 124(4) and (5) of the Equality Act 2010

These sections outline the procedural steps a tribunal must follow when awarding remedies for unintentional indirect discrimination:

• Section 124(4): Applies when discrimination is found to be unintentional.
• Section 124(5): Mandates that tribunals must first consider making declarations or recommendations before awarding compensation.

The appellant argued these sections impose a hurdle to compensation, but the Court clarified that they do not prevent compensation but ensure a comprehensive consideration of all potential remedies.

Injury to Feelings

This refers to the psychological impact or emotional distress caused by discriminatory actions. Compensation for injury to feelings is a financial remedy intended to acknowledge and address the emotional harm suffered by the claimant.

Conclusion

The decision in Wisbey v. Commissioner of the City of London Police reaffirms that the Equality Act 2010’s provisions for remedies in cases of unintentional indirect discrimination are compliant with EU law. By upholding the adequacy and procedural integrity of sections 124(4) and (5), the Court has ensured that individuals facing indirect discrimination retain access to effective and proportionate remedies, including compensation for injury to feelings. This judgment not only clarifies legislative interpretations but also strengthens the legal framework protecting individuals from subtle yet impactful discriminatory practices in the workplace.

Note: The Tribunal did not expound upon subsection (5) in their judgment, leaving certain procedural nuances unaddressed.