Wisbey v Commissioner of the City of London Police & Anr

Section 124(4) and (5) of the Equality Act 2010 does not make compensation unavailable for unlawful indirect discrimination applied without discriminatory intention. It requires an employment tribunal to consider a declaration and/or recommendation before making a compensation order, but creates no priority or presumption against compensation. Where loss or damage results from the discrimination, compensation should be adequate and proportionate. A tribunal misdirects itself if it treats absence of discriminatory intention as excluding compensation. The appeal nevertheless failed because the injury to feelings identified arose from a separate firearms ban, not the unlawful driving ban.

The appellant, a City of London police officer with defective colour vision, was removed from firearms and rapid-response driving duties and later reinstated. The Employment Tribunal dismissed the firearms claim but upheld indirect sex discrimination in the driving ban. It made a declaration but no award for injury to feelings, finding the discrimination unintentional and the injury attributable to the firearms ban. The Employment Appeal Tribunal refused permission to proceed on the relevant ground in UKEATPA/0946/19. The Court of Appeal granted permission on whether section 124(4) and (5) of the Equality Act 2010 unlawfully restricted effective compensation under EU law, the Charter or the Convention.

The appeal was dismissed unanimously. Lady Justice Simler gave the judgment, with Lord Justice Lewis and Lord Justice Peter Jackson agreeing.

1. Section 124(4) and (5) of the Equality Act 2010 applies where indirect discrimination is established but the provision, criterion or practice was not applied with an intention to discriminate. The tribunal must first consider whether to make a declaration or recommendation before making a compensation order.
2. That requirement is procedural only. The remedies under section 124(2) are not mutually exclusive, and the statute gives no remedy priority or greater weight. Once the declaration and/or recommendation has been considered, compensation remains available where loss or damage was sustained. The former prohibition on damages for unintentional indirect discrimination was repealed and was not reintroduced by the Equality Act 2010.
3. The retained EU-law principles require real and effective compensation or reparation for loss and damage caused by sex discrimination, in a dissuasive and proportionate way. The statutory sequence does not create a hurdle to compensation, inhibit enforcement of domestic or EU rights, or breach the principle of effectiveness. The alternative arguments based on the Charter and Convention therefore added nothing.
4. The Employment Tribunal’s statement that it did not need to assess injury to feelings was at least ambiguous. If it meant that unintentional discrimination itself excluded compensation, that was a misdirection. However, the error was immaterial. The Tribunal found no evidence that injury to feelings flowed from the unlawful driving ban; the injury identified arose from the separate firearms ban. There was therefore no compensable injury caused by the unlawful discrimination.

1. Court of Appeal (Civil Division): Appeal dismissed. The court held that section 124(4) and (5) of the Equality Act 2010 did not restrict effective compensation. [2021] EWCA Civ 650.
2. Employment Appeal Tribunal: Permission to proceed to a full appeal was refused in relation to the relevant ground. UKEATPA/0946/19.
3. Employment Tribunal: The firearms claim was dismissed, while the indirect sex discrimination claim concerning rapid-response driving was upheld. A declaration was made, but no compensation for injury to feelings was awarded.