28 May 2021 | Comment | Article by Eleanor Bamber
“Yes” the Court of Appeal found in Wisbey v The Commissioner of the City of London Police and College of Policing.
This case concerned the application of s124 Equality Act 2010 and the remedies available in a case of discrimination.
The claimant is a police officer with defective colour vision (more prevalent in men than women). Due to his condition, he had been temporarily restricted from firearms duties and from advanced driving.
Previous tribunal decisions had held that the use of colour vision tests by the police force in order to allow officers to use firearms or to undertake rapid response driving put men at a disadvantage because men were 14 times more likely than women to have colour vision defects. However, it was justified in the case of firearms duties by the legitimate aim of ensuring public safety. The ability of armed officers to differentiate colour was a necessary factor to assess risk, and studies showed that the series of tests used were the most reliable available. Although there was no set of practical tests that could identify all defects reliably, it was better to err on the safe side, given the real and considerable risk of harm to the public and to effective policing.
A tribunal did however find that the restriction of driving duties was not proportionate and was unjustified indirect sex discrimination. It was however unintentional indirect discrimination.
The relevance of the discrimination being “unintentional” is in the effect on the remedies available to the court. Applying s124 Equality Act 2010, the remedies available were a declaration, compensation and a recommendation. But if indirect discrimination is unintentional, compensation is only to be awarded after first considering making a declaration and/or a recommendation. The tribunal made a declaration but no recommendation. As the driving ban had been lifted, it then declined to award compensation for injury to feelings.
The appeal to the Court of Appeal was based on s124 being incompatible with EU law and Convention rights, as not providing an effective remedy nor dissuading employers from discriminating. The Court disagreed, holding that the requirement to consider a declaration and/or a recommendation first is simply a procedure, it does not prioritise or emphasise one remedy over another. It is not an obstacle to awarding compensation where it is due, the court noted 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".
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