Unintentional indirect discrimination

What is indirect discrimination?

Indirect discrimination is where a provision, criterion or practice, which are not intended to treat anyone less favourably, but which in practice have the effect of disadvantaging a group of people with a particular protected characteristic, as set out in section 4 Equality Act 2010. This could be, for example, where an employer requires employees to work full time. This requirement could disadvantage women as a group since woman in society as a whole bear a greater part of domestic and childcare responsibilities than men and more likely want (or need) to work part-time.

The case of Wisbey v The Commissioner of the City of London Police

The Court of Appeal has recently held in the case of Wisbey v The Commissioner of the City of London Police and College of Policing that the Equality Act 2010, specifically the provi-sions dealing with remedies for unintentional unlawful indirect discrimination are compatible with EU law.

In this matter, the Claimant is a police officer with defective colour vision (which is far more prevalent in men than women). Due to his condition, he had been temporarily restricted from firearms duties and from advanced driving. A tribunal found that only the restriction of driving duties was unjustified indirect sex discrimination, but it was unintentional.

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 tribu-nal made a declaration but no recommendation, as the driving ban had been lifted, it then de-clined to award compensation for injury to feelings.

The Court of Appeal (Simler LJ giving the leading judgment) has unanimously held that the remedies for unintentional indirect discrimination under section 124 of the Equality Act 2010 (EqA 2010) are not incompatible with the Equal Treatment Directive (2006/54/EC), the European Convention on Human Rights and the Charter of Fundamental Rights of the European Union. There is nothing in section 124(2) of the EqA 2010 to indicate that one remedy has priority over, or carries greater weight than, another, nor that steers tribunals away or dissuades them from making compensatory awards. The prohibition on awarding damages for unintentional indirect discrimination under the previous equality legislation was repealed by Parliament and was not reintroduced in any way in the EqA 2010.

Further, the court held that there is nothing in the terms of section 124(4) and (5) of the EqA 2010 that operates as a restriction on, or an obstacle to, the right to compensation for loss and damage due to unlawful sex discrimination. There was therefore no breach of the principle of effectiveness. Requiring a tribunal to first consider whether to make a declaration or a recommendation before compensation can be awarded did not inhibit or make it more difficult for a claimant to achieve their domestic or EU rights.

If you have experienced discrimination in a workplace, please contact our employment solicitors on 023 8071 8000.