The claimant was employed as a police officer of the respondent.  Throughout his employment he had suffered from defective colour vision.  In 2016 the respondent required the claimant to undertake a number of tests relating to colour vision.   In March 2017 new guidance was released about eyesight standards including colour deficiency which the claimant failed to meet.  As a result, he was removed from advanced driving duties as well as being an authorised firearms officer.   He challenged those and was re-instated yet also brought legal action.

The legal action centred upon indirect discrimination on the basis that a higher proportion of men suffered from colour vision defects.  The Tribunal upheld the claim relating to the issue of advanced driving duties but refused the aspect relating to firearms.   Furthermore, there was no injury to feelings compensation given as the discrimination was ‘unintentional’ with the respondent not knowing the different levels of colour vision issues for men and women.

The issue raised at the Court of Appeal was the refusal to award compensation for injury to feelings.  The argument being made was that Section 124(4) of the Equality Act 2010 (Article 65(1B) of the Sex Discrimination (NI) Order 1976 in Northern Ireland) which outlines that an order may not be made if the criterion, provision or practice was not intended to be discriminatory.  There were arguments made relating to the European Convention, the Charter of Fundamental Rights and the EU Equal Treatment Directive 2006/54.  The basis of these is that they required real and effective compensation for loss and damage sustained due to discrimination.

The Court of Appeal dismissed the appeal.  It was held that Section 124 of the Equality Act did not restrict the right to proportionate compensation where there has been indirect sex discrimination.   There was nothing within the legislation which prioritised particular forms of remedies over another.    Therefore, considering the remedies of declaration and recommendation first did not have the effect of limiting the effectiveness of the compensatory right.  As a result, the appeal was dismissed, and Section 124 was compatible with the human rights instruments outlined to the court.

Practical Lessons

This case demonstrates the way in which the remedies should be examined when it comes to indirect discrimination cases on sex as seen here.   The challenge to Section 124 of the Equality Act 2010 of the right to an effective remedy under human rights legislation failed on the basis that the examination of a declaration or recommendation first did not preclude any order of compensation as the legislation did not prioritise any particular form of remedy.
https://www.bailii.org/ew/cases/EWCA/Civ/2021/650.html