Wisbey v Commissioner of the City of London Police & Anr

Factual and Procedural Background

The appeal concerns a police officer ("Appellant") employed by the City of London Force ("Respondent"), who suffers from a defective colour vision. The Appellant was removed from his role as an authorised firearms officer ("AFO") and from advanced driving duties due to failure to meet colour vision standards, despite the defect having no obvious impact on his job performance. He challenged the removal as unlawful indirect sex discrimination, given that colour vision defects disproportionately affect men. The Employment Tribunal upheld the claim only in relation to the removal from driving duties but declined to award compensation for injury to feelings, finding the discrimination was unintentional and that the Respondent lacked knowledge of the disparate impact on men. The Appellant's subsequent appeal to the Employment Appeal Tribunal was unsuccessful. Permission to appeal to the higher court was granted solely on a novel legal ground challenging the compatibility of sections 124(4) and (5) of the Equality Act 2010 with EU law, the Charter of Fundamental Rights, and the European Convention on Human Rights.

Legal Issues Presented

1. Whether the provisions in sections 124(4) and (5) of the Equality Act 2010, which govern remedies for unintentional indirect discrimination, are incompatible with EU law, the Charter of Fundamental Rights, and the European Convention on Human Rights.
2. Whether this alleged incompatibility resulted in a failure to award compensation for injury to feelings to the Appellant despite establishing unlawful indirect discrimination.

Arguments of the Parties

Appellant's Arguments

• Sections 124(4) and (5) impose an additional threshold before compensation can be awarded in unintentional indirect discrimination cases, undermining the effectiveness and dissuasiveness of remedies.
• This procedural hurdle allows tribunals to avoid awarding compensation even where loss has been sustained, by prioritising declarations or recommendations over compensation.
• The provisions conflict with EU law, specifically the Recast Directive, which requires real and effective compensation that is proportionate and dissuasive.
• Similar incompatibility arises under the Charter of Fundamental Rights and the European Convention on Human Rights, which guarantee effective remedies for rights violations.
• The restriction on compensation for unintentional indirect discrimination indirectly discriminates against women, violating the Recast Directive and Article 14 of the Convention.

Respondent's Arguments

• Sections 124(4) and (5) do not restrict the availability of compensation once unintentional indirect discrimination is established.
• The provisions require tribunals only to consider declarations and recommendations before awarding compensation, not to prohibit or discourage compensation awards.
• The statutory scheme retains discretion to award compensation where loss is sustained, consistent with EU law requirements for effective and proportionate remedies.
• The procedural requirement does not constitute a barrier or hurdle to compensation and does not violate the principle of effectiveness or non-discrimination.

Table of Precedents Cited

Court's Reasoning and Analysis

The court focused on the interpretation of sections 124(4) and (5) of the Equality Act 2010, which require employment tribunals to consider declarations and/or recommendations before awarding compensation in cases of unintentional indirect discrimination. The court found that these provisions do not impose a substantive restriction or obstacle on awarding compensation but rather establish a procedural step to ensure other remedies are considered first. The court rejected the argument that this procedural requirement undermines the effectiveness or dissuasiveness of remedies as mandated by EU law and related instruments.

Historical context was considered, noting that prior legislation expressly prohibited damages awards in unintentional indirect discrimination cases, but this prohibition was repealed and replaced with a scheme allowing compensation where just and equitable. The court emphasized that the statutory language is clear that compensation may be awarded after consideration of other remedies and that tribunals retain discretion to do so.

The court also examined the factual findings of the Employment Tribunal, which found no evidence of injury to feelings arising from the unlawful indirect discrimination related to driving duties, with the real injury linked to the firearms ban. Therefore, even if there was a misdirection regarding the assessment of injury to feelings, it was immaterial on the facts.

Finally, the court noted that the principles of EU law and the Charter require effective remedies but allow Member States discretion in implementation, provided compensation is real, effective, dissuasive, and proportionate. The court concluded that the statutory scheme meets these requirements and does not discriminate unlawfully.

Holding and Implications

The court held that sections 124(4) and (5) of the Equality Act 2010 are compatible with EU law, the Charter of Fundamental Rights, and the European Convention on Human Rights. The procedural requirement to consider declarations and recommendations before awarding compensation in unintentional indirect discrimination cases does not constitute a barrier to compensation and does not violate the principle of effectiveness or non-discrimination.

The appeal was dismissed. The direct effect is that the Appellant’s challenge to the statutory scheme failed, and no compensation for injury to feelings was awarded in this case. No new precedent altering the law on remedies for unintentional indirect discrimination was established.