Can an award for injury to feelings be made even if the discrimination was indirect and unintentional?

The short answer is yes. However, section 124 of the Equality Act 2010 stipulates that a tribunal cannot make such an award before considering making a declaration (a statement as to the rights of the parties) or a recommendation (advice as to how to avoid future discrimination). If, after such a consideration and irrespective of its decision, the tribunal can make an award for injury to feelings.

In Wisbey v Commissioner of the City of London Police & Anr [2021] EWCA Civ 650, the Claimant was a policeman who was suspended from advanced driving duties because of his defective colour vision. Around 8% of men and only 0.25% of women suffer from colour vision defects. The Claimant brought a case alleging indirect sex discrimination.

The ET found in his favour. However, they refused to award injury to feelings. Instead, they made a declaration. The EAT agreed with the ET and the Claimant appealed to the court of appeal.

He alleged that Section 124 of the Equality Act 2010 was incompatible with EU law (as the case was originally brought during those heady days of EU membership), in that it discouraged a tribunal from making an award for injury to feelings in unintentional indirect discrimination cases.

The Court of Appeal dismissed his claim. They said that Section 124 did not itself dissuade a tribunal from making an award of compensation for injury to feelings: the absence of such a remedy in this case was fact specific.

Takeaway Point

Although this case turned on an EU law point, it will remain relevant in the future. Just because indirect discrimination is unintentional, it does not mean the Claimant cannot receive injury to feelings. However, the ET is obliged to consider the abovementioned remedies first.

There is another interesting discrimination case in the Court of Appeal at the moment: Steer v Strormsure. This concerns whether the absence of interim relief for discrimination claims is contrary to the Human Rights Act. We look forward to the Court’s judgment and consider the possibility of an appeal to the Supreme Court.