Thread by @JasonBraier

1/ Wisbey v Met Police: Is the EqA's requirement in an unintentional indirect discrimination case to consider recommendations & declarations before compensation incompatible with EU law? No, says the CA. bailii.org/ew/cases/EWCA/… #ukemplaw

2/ The claim arose from the removal of a firearms officer from firearms and driving duties on finding he had a form of colourblindness. Statistically 8% of men but just 0.25% of women suffer from this affliction.

3/ As a result of the difference in incidence among men & women, W brought an indirect sex discrimination claim based on a PCP to pass certain colour vision tests to remain authorised for firearms & advanced driving duties.

4/ The ET dismissed the firearms claim (on proportionality grounds) but allowed the driving claim. It declined to award compensation for injury to feelings, finding the discrimination unintentional.

5/ The question on appeal was whether this application of s.124(4)-(5) EqA was incompatible with the Recast Directive, Charter of Fundamental Rights & ECHR on grounds that they impose an additional hurdle before consideration is given to awarding compensation.

6/ Arguments focused on the requirement for an effective remedy & the need for remedies against findings of discrimination to be both dissuasive & proportionate under EU law & the Convention.

7/ W also argued that given the arguments accepted in Unison about women being particularly affected by hurdles to bringing discrimination claims, an additional hurdle to an EqA claim as against an unfair dismissal claim was discriminatory against women.

8/ In dismissing the appeal, the CA noted that the original position under the SDA & RRA was that there would be no compensation for unintentional indirect discrimination, whereas the EqA allowed for it but after looking 1st at other remedies.

9/ The CA noted that the EqA remedies were not mutually exclusive but could all be made in the same case. None ordinarily has priority over the others. Whilst s.124(4)-(5) prioritises the order of consideration, it doesn't steer tribunals from awarding compensation.

10/ There is no restriction on ordering compensation once the other 2 remedies have been considered. The statutory provisions are no obstacle to a compensatory award. The provision of the option of compensation remains real and effective.