When deciding cases of indirect discrimination, tribunals can make a declaration, a recommendation and/or an award of compensation. In Wisbey v The Commissioner of the City of London Police and anor, the Court of Appeal held that tribunals are not required to make an award of compensation just because they made a declaration or recommendation.
Mr Wisbey was an authorised firearms officer (AFO) and a rapid response driver for the City of London police force who suffered from a form of defective colour vision. Although it had had no obvious effect on his ability to discharge his duties, his employer removed him from his AFO role in March 2017 and later, from advanced driving duties after new guidance was introduced with regard to eyesight standards. Following a series of further colour vision tests he was reinstated to both roles in February 2018.
Given that about eight per cent of men and only 0.25 per cent of women suffer colour vision defects, Mr Wisbey made a claim of unlawful indirect discrimination, arguing that the requirement to pass certain colour vision tests unlawfully discriminated against men on the ground of sex.
Decisions of tribunal and EAT
In relation to firearms duties, the tribunal found that the provision, criterion or practice (PCP) applied by the force (requiring officers to undergo a suite of tests to ensure they carried out their duties safely) was legitimate and proportionate in its aim. With regard to driving duties, however, the restriction was not proportionate, and it made a declaration therefore that Mr Wisbey had been subject to indirect sex discrimination. It held that as the PCP was unintentional in the sense that the force was unaware that Mr Wisbey would be put at a particular disadvantage as a man, it declined to make him an award for injury to feelings under section 124 of the Equality Act 2010.
Rejecting the appeal, the EAT held that, as there was no arguable flaw in the tribunal’s reasoning, it was entitled to come to the conclusion that it had. Mr Wisbey appealed again on the basis that section 124 was incompatible with EU law since it denied him an effective remedy and would not act to dissuade an employer from discriminating against a worker.
Section 124 states that if a tribunal finds that a provision of the Act has been contravened but that the PCP was not intentional, it does not have to make an award of compensation if it has first considered making a declaration and/or a recommendation.
Decision of Court of Appeal
Dismissing the appeal, the Court held that the wording in section 124 was clear and unambiguous. Tribunals just have to consider whether to make a declaration and/or a recommendation before deciding whether to make an award of compensation. There was nothing in the wording to indicate that they should prioritise or emphasise one remedy over another, nor was there anything “that steers tribunals away or dissuades them from making compensatory awards”.
If the tribunal decided that it was appropriate to make a declaration and a recommendation, there was nothing to stop it from also awarding compensation. In other words, tribunals have a clear discretion about whether to award compensation once they have considered the other remedies. However, if a worker had sustained loss and damage, they should expect to be awarded compensation that was adequate and proportionate.
The Court concluded that requiring a tribunal to consider whether to make a declaration or a recommendation first, before deciding whether to award compensation did not inhibit or make it more difficult for a complainant to vindicate their domestic or EU rights.