Wisbey v Commissioner of the City of London Police & Anr

The Court of Appeal was asked whether section 124(4) and (5) of the Equality Act 2010 is incompatible with EU law, the Charter or the Convention because it requires tribunals to consider a declaration or recommendation before awarding compensation for unintentional indirect discrimination. The court held that the statutory requirement to consider a declaration and/or a recommendation first does not operate as a bar to awarding compensation and does not conflict with the principle that remedies must be effective, dissuasive and proportionate (as reflected in the Recast Directive and the Charter). The court also found that, on the facts, the Employment Tribunal erred if it treated lack of intent as automatically precluding an award of injury to feelings; but any such misdirection was immaterial because the Tribunal had found no evidence that the injury to feelings flowed from the unlawful driving ban.

Background and procedural posture. The appellant, a City of London police officer with a colour vision defect, succeeded at first instance in establishing unlawful indirect sex discrimination in respect of a ban from rapid response driving. The Employment Tribunal found the driving ban was not proportionate and therefore indirect discrimination was established; it declined to award compensation for injury to feelings, treating the discrimination as unintentional as contemplated by section 124(4)–(5) Equality Act 2010. The Employment Appeal Tribunal (Kerr J) refused permission to appeal on the point of intentionality. The appellant obtained limited permission to appeal to the Court of Appeal (order sealed 27 October 2020) on the pure question whether section 124(4)–(5) is compatible with EU law, the Charter and the Convention.

Nature of the claim and relief sought. The appellant sought remedies available under section 124 EA 2010, including a declaration, compensation (in particular for injury to feelings) and recommendations. The compatibility challenge alleged that the statutory requirement to consider a declaration or recommendation before awarding compensation unlawfully restricted the availability of effective and dissuasive compensation for unintentional indirect discrimination.

Issues framed by the court.

• Whether section 124(4)–(5) EA 2010 imposes an additional hurdle that prevents or restricts adequate compensation in cases of unintentional indirect discrimination, contrary to the Recast Directive (in particular Article 18 and related recitals), the Charter (Article 47) and the Convention (Article 13 and Article 14 arguments).
• Whether any incompatibility with EU law or human rights obligations meant the Employment Tribunal had been required to award compensation for injury to feelings in this case.

Reasoning and subsidiary findings. The court analysed the statutory text and legislative history. It concluded that section 124(5) prescribes a procedural order of consideration (declaration/recommendation first) but does not prevent or displace the tribunal’s discretion to award compensation where loss or injury has been sustained. The court explained that the prior prohibition on damages for unintentional indirect discrimination under predecessor statutes had been repealed and that the current wording does not resurrect such a prohibition. The court considered the Recast Directive and Charter principles but held that the domestic provision, properly construed, does not infringe the requirement for an effective, dissuasive and proportionate remedy. The court noted that the Employment Tribunal’s paragraph 136 could be read as misdirecting itself into treating lack of intent as fatal to a compensation award; that was an error of reasoning if so, but it was immaterial because the Tribunal had expressly found that the appellant’s injury to feelings derived from exclusion from firearms duties rather than from the driving ban. Accordingly there was no compensatable injury traceable to the unlawful driving restriction to be remedied.

Wider context. The court summarised relevant legislative evolution from the Sex Discrimination Act 1975 and Race Relations Act 1976 to the Equality Act 2010 and explained that the mechanical prohibition on damages for unintentional indirect discrimination no longer exists.

The appeal is dismissed. The Court of Appeal held that section 124(4) and (5) of the Equality Act 2010, properly construed, does not prevent a tribunal from awarding compensation for injury to feelings in a case of unintentional indirect discrimination and is not incompatible with the Recast Directive, the Charter or the Convention. Any misdirection by the Employment Tribunal in treating lack of intent as precluding compensation was immaterial because the Tribunal found no evidence that the injury to feelings flowed from the unlawful driving ban.

Appeal from the Employment Tribunal (London Central Employment Tribunal, judgment with reasons dated 19 August 2019); Employment Appeal Tribunal (Kerr J) refused permission to advance the third ground (preliminary hearing, UKEATPA/0946/19); permission to appeal to the Court of Appeal limited to the compatibility challenge was granted by Lewison LJ (order sealed 27 October 2020); appeal heard in the Court of Appeal resulting in [2021] EWCA Civ 650.