Ijeoma Omambala QC succeeds in the Court of Appeal as the court reject submissions that the remedy provisions in the Equality Act 2010 for cases of unintentional unlawful indirect discrimination are incompatible with EU law.
Judgment was handed down on Thursday 06th May 2021.
On behalf of Mr Wisbey, Karon Monaghan QC and David Stephenson argued that section 124(4) and (5) of the Equality Act 2010 were not compatible with Council Directive 2006/54/EC (“the Recast Directive”), the Charter of Fundamental Rights (“the Charter”) and the European Convention for the protection of Human Rights and Fundamental Freedoms (“the Convention”). They contended that the Equality Act provisions imposed an additional threshold or hurdle before a court could give consideration to awarding compensation in an unintentional indirect discrimination case. They argued, the remedies available for this form of discrimination were therefore neither effective nor dissuasive.
Accepting Ijeoma’s arguments the Court of Appeal held that the prohibition on awarding damages for unintentional indirect discrimination was repealed by Parliament and has not been reintroduced in any way by the Equality Act 2010.
It held that requiring a tribunal to first consider whether to make a declaration or a recommendation before compensation could be awarded, did not inhibit or make it more difficult for a complainant to vindicate their domestic or EU law rights.
The Court rejected the assertion of a difference in treatment between discrimination claims and other employment-related claims which could form the basis of an indirect sex discrimination claim. It held that the discretion to make a compensation order in either case was the same, subject only to the order in which potential remedies must be considered in unintentional indirect discrimination cases. The consideration requirement in section 124(5) is not an obstacle to an award of compensation where compensation is due.
The Court confirmed that there can be no doubt that employment tribunals have discretion under section 124(5) to award compensation once the other remedies have been considered. It added that if loss and damage has been sustained as a consequence of the indirect discrimination suffered, it is to be expected that compensation will be awarded. That compensation should be adequate to compensate for the loss and damage suffered and proportionate to it.
In Mr Wisbey’s case the employment tribunal had received no evidence of injury to feelings flowing from the unlawful indirect discrimination established in the case. There was therefore no scope to argue that he had suffered injury to feelings which should have attracted an award of compensation.