Sophie Hay
Posted on 25 May 2021

Remedies for unintentional indirect discrimination consistent with EU law: Wisbey v Commissioner of the City of London Police

Indirect discrimination occurs when there is a policy or practice which is applied to everyone in the same way but which, in practice, has the effect of disadvantaging a group of people with a particular protected characteristic.

Where the Employment Tribunal is satisfied that indirect discrimination occurred, but was unintentional, it must first consider whether to make a recommendation or a declaration before making any compensatory award. In the recent case of Wisbey v Commissioner of the City of London Police and another [2021] EWCA Civ 650, the Court of Appeal held that this approach is not incompatible with the European Convention on Human Rights and EU law, as the three remedies are not mutually exclusive and the Tribunal is not prevented from awarding compensation where it decides to make a declaration and/or recommendation.

Indirect Discrimination under the Equality Act 2010

Section 19 of the Equality Act 2010 (EqA 2010) provides that a person (A) indirectly discriminates against another (B) if B possesses any one of the protected characteristics (other than pregnancy and maternity) and:

  • A applies a provision, criterion or practice (PCP) to B, and

  • A applies, or would apply the same PCP to individuals who do not possess the same protected characteristic as B, and

  • that PCP puts or would put individuals who possess B’s protected characteristic at a particular disadvantage when compared with individuals who do not possess it, and

  • that PCP puts, or would put, B at that disadvantage, and

  • A cannot show that the PCP is justified, i.e. 'a proportionate means of achieving a legitimate aim'

Protected characteristics include age, disability, gender reassignment, marriage and civil partnership, race, religion or belief, sex and sexual orientation.

A classic example of indirect discrimination is an employer requiring an employee to work full time. This could particularly disadvantage women, since women as a group tend to bear a greater share of childcare and domestic responsibilities than men and, therefore, are more likely to need to work part time. Unless the employer could justify the need for employees to work full time, this requirement could be indirectly discriminatory against women.

Remedies

In cases of indirect discrimination under section 19 of the EqA 2010, the rules on remedies differ slightly depending on whether the indirect discrimination was intentional or unintentional. The rules for deciding which remedy can be used are as follows:

  • Compensation will be immediately available if it is shown that the employer intended to discriminate. Here, it is enough to show the employer knew that discrimination would occur when it imposed the PCP.

  • Where a claimant succeeds in an indirect discrimination case but the Tribunal is satisfied that the PCP was not applied by the employer with the intention of discriminating against the claimant, the Tribunal must not make an order for compensation unless it has first considered whether to make a declaration or recommendation (sections 124(4) and (5) EqA 2010).

Wisbey v Commissioner of the City of London Police

The facts

The Claimant is a police officer in the City of London Police force. He was an authorised firearms officer (AFO) and was part of the rapid response driving team. Throughout his employment as a police officer he has had mild red-green colour blindness. The Claimant's defective colour vision has had no obvious effect on his ability to do his job, but when new standards were brought in in March 2017, he was removed from both his role as an AFO and from rapid response driving duties. However, following further colour vision tests, the Claimant was reinstated to full duties in February 2018.

The Claimant brought a claim of indirect sex discrimination based on the statistics that 8% of men and only 0.25% of women suffer colour vision defects. He argued, therefore, that the new standards brought in in March 2017 indirectly discriminated against men.

Decisions of the Employment Tribunal (ET) and Employment Appeal Tribunal (EAT)

The claim based on his removal as an AFO was dismissed by the ET, but his claim for indirect discrimination in removing him from rapid response driving was upheld. This was because the Tribunal found that barring those with colour vision defects from driving was not reasonably necessary.

The ET declined to make an award of compensation for injury to feelings, finding that the indirect sex discrimination was unintentional in the sense that the respondent did not know, when applying the colour vision requirements to the Claimant, that he would be put at a particular disadvantage as a man, and did not intend that consequence.

The Claimant appealed to the EAT, unsuccessfully. The Claimant then appealed to the Court of Appeal. The principal question raised in this appeal was the compatibility of sections 124(4) and (5) EqA 2010 with EU law. It was argued that the provision is not compatible because it imposes an additional hurdle before consideration can be given to awarding compensation.

Decision of the Court of Appeal

The Court of Appeal dismissed the appeal, holding that sections 124(4) and (5) do not restrict the right to adequate and proportionate compensation for unlawful indirect sex discrimination. The provisions simply state that the remedies of a declaration and a recommendation must be considered first, before any compensation is awarded. If, after consideration, the Tribunal decides that a declaration and a recommendation are appropriate, nothing in the terms of the statute preclude a Tribunal from also awarding compensation.

Practical Implications of the Case

This case is of interest to those who litigate indirect discrimination claims as, throughout the litigation, detailed commentary was provided on the interpretation and application of sections 124(4) and (5) EqA 2010.

To highlight the historical context of these provisions – the Sex Discrimination Act 1975 did not allow compensation to be award where indirect discrimination was unintentional. This was then amended in 1996 to allow compensation to be awarded where it would not be just and equitable to only award a recommendation or declaration.

This case has demonstrated that sections 124(4) and (5) EqA 2010 go beyond the 1996 provisions as they do not indicate any kind of preference towards one remedy over others. The sections simply set out an order of potential remedies for Employment Tribunals to consider; there is nothing in the wording to dissuade them from making compensatory awards. This interpretation may therefore lead to more awards of compensation being made in claims of unintentional indirect discrimination.

This article is for information purposes only and is not a substitute for legal advice and should not be relied upon as such. Please contact Sophie Hay or Rachael Lloyd to discuss any issues you are facing.