Alexander Wisbey vs the C of L Police Force and College of Policing
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Indirect sex discrimination occurs when a rule, policy or practice places a particular sex at a disadvantage in the workplace. For example, a policy that requires all their employees to work full-time without flexible working may have a negative impact on the female members of that workforce, as they tend to have more caring responsibilities for young children or dependent adults.
Indirect sex discrimination may also occur if standards disproportionately affect one gender more than another, which is demonstrated in the Alexander Wisbey vs the C of L Police Force and College of Policing (COLPF and CoP) case. Mr Wisbey was a police sergeant, authorised firearms officer (AFO) and a member of the rapid response driving team. Mr Wisbey is also deuteranomaly colour blind, which means red, yellow, green, and brown colours can appear to be very similar to him, especially in low light.
Mr Wisbey had been told he was colour blind after he had a vision test in 1993, when he had started his career as a police officer. He was not given any other tests and over 26 years, he worked as a uniformed officer and performed all of his duties, including rapid response vehicle driving.
Although John Brown, the chief firearms officer, told the COLPF and CoP’s occupational health (OH) adviser that the impact of Mr Wisbey’s colour blindness on his performance was minor and was signed as fit when he transferred to another police force, the Occupational Health advisor told Mr Wisbey that he must pass one of two additional tests for colour vision deficiency. Mr Wisbey passed one test, but not the other and was asked to complete another test to check how severe his colour blindness was.
After the tests took place The College Police had issued new guidance around eyesight standards for colour deficiency, standards which Mr Wisbey had not met. His status as an AFO was therefore removed and the chief superindendent decided Mr Wisbey should be removed from the rapid response driving team due to concerns about how his colour blindness could affect his performance.
Mr Wisbey brought forward claims of indirect sex discrimination because they said colour blindness is a genetic condition that significantly effects men more than women, so they felt that enforcing the standards for colour deficiency would disproportionately impact men.
When he took the case to tribunal Mr Wisbey did not receive any compensation because after going though further medical examinations, he was reinstated to both teams. However, the employment tribunal ruled that Mr Wisbey did experience indirect discrimination in relation to being removed from the rapid response driving team because while his employer had thoroughly investigated the impact of Wisbey’s colour deficiency in relation to health and safety risks with firearms, but not for his rapid response driving responsibilities. Judge Sarah said “There was no basis to show it was necessary to bar a driver with any but the move severe (and very rare) colour vision defects, and those with severe defects would probably fail a normal test of visual acuity anyway.”
To avoid indirect sex discrimination claims, employers are advised to do the following:
- When deciding to adopt new standards, make sure managers and senior leaders perform thorough and complete equality impact assessments so you can be sure decisions made do not have a negative impact on any groups with a protected characteristic.
- If you introduce new policies, rules or standards, communicate them clearly to employees so they understand why they are being introduced and have an opportunity to provide feedback.