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Indirect Discrimination and Injury to Feelings – Court of Appeal Test Case

Acts of indirect discrimination are very often unintentional – but to what extent, if any, should that impact on compensation paid for injury to feelings? The Court of Appeal tackled that issue in a test case concerning a police officer who was suspended from advanced driving duties because of his defective colour vision.

It is a matter of statistical fact that about 8 per cent of men, and only 0.25 per cent of women, suffer from colour vision defects. Following his suspension, which lasted for about eight months, the officer launched Employment Tribunal (ET) proceedings and his claim of indirect sex discrimination was upheld. The ET granted a declaration to that effect but declined to award him compensation for injury to his feelings.

In its decision, the ET found that the officer’s employer had not intended to discriminate against him. The force did not know that the application of various colour vision requirements to advanced drivers would place him at a particular disadvantage as a man and it did not intend that consequence. The ET’s ruling was subsequently upheld by the Employment Appeal Tribunal.

Challenging that outcome, the officer contended that the refusal to award compensation revealed a fundamental incompatibility between relevant sections of the Equality Act 2010 and EU anti-discrimination rules, which continued to apply to the case as the proceedings were lodged prior to the UK’s departure from the EU. It was submitted that, if correct, the ET’s decision served to undermine the objectives and dissuasive impact of EU legislation.

The Court acknowledged that the case raised legal issues of some importance, but went on to rule that there was no such incompatibility. On a true reading of Section 124(4) and (5) of the Act, it conferred a wide discretion on ETs to compensate those who suffer indirect discrimination. There was no statutory bar on such awards being made in cases where discrimination was unintentional. Where loss or damage was sustained, financial awards were to be expected, whether or not the indirect discrimination was intentional.

The Court accepted that, on one reading of the ET’s decision, it misdirected itself in finding that the absence of intent on the force’s part ruled out the possibility of awarding compensation for injury to feelings. In dismissing the appeal, however, the Court observed that there was no evidence that the officer suffered injury to his feelings as a result of the indirect discrimination that was established.

Published in
17 May 2021
Last Updated
31 May 2021