Court of appeal finds remedies in unintentional indirect discrimination case compatible with EU law


Re: Wisbey v Commissioner of the City of London Police & Anr [2021] EWCA Civ 650

The appellant is a police officer in the City of London Force (the first respondent in the proceedings before the Tribunal, and the respondent in this appeal).  He was an authorised firearms officer (“AFO”). Throughout his employment as a police officer he has had a form of defective colour vision which had no obvious effect on his ability to discharge his duties. However the respondent removed him from both his AFO role in March 2017 and later, from advanced driving duties as well. Following a series of further colour vision tests he was reinstated to both roles in February 2018.

The principal question raised by this appeal is whether the provision in the Equality Act 2010 dealing with remedies in a case of unintentional unlawful indirect discrimination is incompatible with EU law. It challenges the compatibility of section 124(4) and (5) of the Equality Act 2010 with EU law, in particular, Council Directive 2006/54/EC (“the Recast Directive”) and the Charter of Fundamental Rights (“the Charter”). The court must decide whether that incompatibility resulted in a failure to award compensation to the appellant, Mr Wisbey (who succeeded in establishing unlawful indirect discrimination), for injury to his feelings in this case.


Held: the appeal is dismissed. The statutory construction of section 124(4) and (5) EA 2010 do not restrict the right to adequate and proportionate compensation for a breach of the prohibition on indirect sex discrimination; nor that they do not have appropriate dissuasive effect.The wording of these provisions are clear and unambiguous.  Before it can consider making an award   of compensation, a tribunal must first consider whether a declaration and/or a recommendation should be made.

Section 124(5) simply sets out a procedure for considering a declaration and a recommendation by way of remedy first.  Beyond that, there is nothing in the wording of this provision that prioritises or emphasises one remedy over another, nor that steers tribunals away or dissuades them from making compensatory awards. Requiring a tribunal to first consider whether to make a declaration or a recommendation before compensation can be awarded does not inhibit or make it more difficult for a complainant to vindicate their domestic or EU rights.

On the facts of the present case, this was not a situation where there was evidence of injury to feelings that was not assessed by the Tribunal, but rather, there was no evidence of injury to feelings flowing from the unlawful indirect discrimination established.

Ms Karon Monaghan QC was involved in this case.