Wed 23 Jun 2021

Unintentional indirect discrimination

The Court of Appeal ("the Court") has ruled that compensation for injury to feelings can be awarded for unintentional indirect discrimination in certain circumstances. The full judgement can be found here.</p>

Mr Wisbey (the Claimant) is a police officer in the City of London Force (the Respondent). The Claimant suffers from a defective colour vision condition. This condition is significantly more prevalent in men than women and men are around 16 times more likely to suffer from colour vision defects than women. Due to the Claimant's condition, the Respondent had temporarily removed him from firearms officer duties and advanced driving duties, before reinstating him to both following a series of further colour vision tests. The Claimant, in bringing his claim of unlawful indirect discrimination in the Employment Tribunal ("ET"), submitted that the requirement to pass certain colour vision tests to remain authorised for his duties unlawfully discriminated against men on the ground of sex.

The ET considered that the Claimant's removal as an authorised firearms officer was justified by the legitimate aim of public safety but that his removal from advanced driving duties was not proportionate and was therefore unjustified indirect sex discrimination. However, the ET found that such discrimination was unintentional as the Respondent did not know that the requirements placed upon the Claimant, would place him at a particular disadvantage as a man.  The ET did not award any compensation for injury to feelings on the basis that it was unintentional indirect discrimination and section 124 of the Equality Act 2010 ("the EqA") did not require such an award.

The key question raised by the appeal was whether section 124 prevents ETs from making awards for injury to feelings in certain cases of unintentional indirect discrimination. Section 124 provides that in the case of unintentional indirect discrimination, compensation is only to be awarded by the ET after having first considered making a declaration and/or a recommendation. The ET in this case made a declaration but no recommendation as the driving ban had been lifted by the employer.  The ET therefore found it appropriate not to award compensation for injury to feelings.

The Court disagreed with this approach and found that the requirement to consider a declaration and/or a recommendation first is simply a procedure and not a barrier to awarding compensation where it is due.   The Court ruled 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".  However, Mr Wisbey was not successful in his appeal as there was no evidence that he had in fact suffered injury to his feelings in relation to the driving ban.  The injury to his feelings arose from the firearms ban, which the ET had found was justified.

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