Court of Appeal: Peter Jackson, Simler and Lewis LJJ, [2021] EWCA Civ 650, 6 May 2021

Here the Court of Appeal (Simler LJ with whom Peter Jackson and Lewis LJJ agreed) dismissed an appeal against a tribunal’s refusal to award compensation in respect of indirect sex discrimination to a police officer who was subject to a detriment because of his defective colour vision, a condition which affects 8% of men and 0.25% of women, rejecting the claim that s124 EqA breached EU law or Article 14 ECHR. The tribunal had found that the condition had had no obvious effect on the claimant’s ability to function as an authorised firearms officer or in advanced driving duties but he had been removed from both these roles for a period prior to reinstatement following a series of further colour vision tests. The tribunal had relied on s124(4) & (5) EqA which provide that, in a case of unintentional indirect discrimination, a tribunal; must not make an order for compensation unless it first considers whether to make a declaration or recommendation. It was argued before the Court of Appeal that the provision was inconsistent with EU law, in particular, Council Directive 2006/54/EC (“the Recast Directive”) and the Charter of Fundamental Rights (“the Charter”), and with the ECHR, because it placed an additional hurdle on claimants where it applied with the result that the remedies available for this form of discrimination were neither effective nor dissuasive.

The Claimant relied on recitals (5), (33) and (35) of the Recast Directive which require, inter alia, that “the compensation awarded for any breach must be adequate in relation to the damage sustained” and that “Member States should provide for effective, proportionate and dissuasive penalties for breaches of the obligations under this Directive.” Article 18 of the Directive provides that “Member States shall introduce into their national legal systems such measures as are necessary to ensure real and effective compensation or reparation as the Member States to determine for the loss and damage sustained by a person injured as a result of discrimination on grounds of sex, in a way which is dissuasive and proportionate to the damage suffered”. In addition, Article 47 of the Charter provides that “Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article” while Articles 8, 13 and 14 ECHR prohibit discrimination in relation to access to an effective remedy. It was argued that, where financial compensation is the measure adopted to achieve the objective of equality, the CJEU has consistently held that it must be adequate to enable the damage actually sustained as a result of discriminatory treatment to be made good in full, further that (because most sex discrimination claimants are women) the restriction of compensation in cases of indirect sex discrimination discriminated indirectly against women contrary to the Recast Directive and Article 14 ECHR and discriminated on grounds of “other status” contrary to Article 14.

At §33 the Court ruled that s124(4) and (5) EqA did not in fact restrict the right to adequate and proportionate compensation for a breach of the prohibition on indirect sex discrimination or had an appropriate dissuasive effect. Simler LJ noted that the section’s early predecessor provisions in the Sex Discrimination Act 1975 and the Race Relations Act 1976 had prohibited the award of compensation for unintentional indirect discrimination and that they had been amended in 1996 to permit compensation where it would not be just and equitable to grant a declaration or recommendation alone, “prompted in all likelihood by a challenge” under EU law (§36). At §§37-38 she observed that the EqA was a harmonising Act, that s124 applied to all protected characteristics, and that there was nothing in the provision to suggest that compensation was the primary remedy. Section 124(5) stated only that before a tribunal could consider an award of compensation it was required to consider whether a declaration and/or a recommendation should be made: “Beyond that, there is nothing in the wording of this provision that prioritises or emphasises one remedy over another, nor that steers tribunals away or dissuades them from making compensatory awards” (§39). If the decision was made to award compensation it should be “adequate to compensate for the loss and damage suffered and proportionate to it” (§40). The provision did not “operate[] as a restriction on or an obstacle to the right to compensation for loss and damage consequent on a breach of the prohibition on unlawful sex discrimination” and did not therefore breach the principle of effectiveness (§42).

Claimant: Karon Monaghan QC and David Stephenson, instructed by Penningtons Manches Cooper LLP

Respondent: Ijeoma Omambala QC, instructed by Comptroller and City Solicitors