A police officer with a form of colour vision defect faced indirect sex discrimination after his employer temporarily removed him from its rapid response driving team, a London tribunal has found.
Alexander Wisbey, a police sergeant on the City of London Force, was an authorised firearms officer (AFO) and part of the rapid response driving team, but was removed from both teams in April 2017 due to his colour vision defect, before being reinstated following an investigation.
He argued this was indirect sex discrimination as his condition, which was genetic, affects significantly more men than women.
A London employment tribunal (ET) ruled the force indirectly discriminated against Wisbey when it temporarily banned him from the rapid response driving team – but not when it took him off the firearms team – because it did not thoroughly investigate colour vision standards as it had for those within their firearms team.
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The tribunal heard Wisbey was a “mild or moderate deuteranomalous observer”, which affected his performance when an object or target was defined primarily by a red-green colour difference.
Experts told the tribunal that about one in 20 men (approximately 5 per cent) are deuteranomalous compared to only 0.35 per cent of women. As such, men are 14 times more likely to be deuteranomalous than women. Most colour vision defects are genetic and neither improve nor deteriorate, so once diagnosed there is little need to retest.
Wisbey, who started as a police officer in 1993, was told at the start of his career he had a red-green colour vision defect through the basic Ishihara test (pictured), but no other test was done. Over the subsequent 26 years, he worked as a uniformed officer undertaking a full range of duties, including rapid response vehicle driving.
In September 2016, the City of London Police’s occupational health (OH) adviser asked the chief firearms inspector whether any officers in firearms group had a colour vision defect. John Brown, the chief firearms officer, replied that Wisbey did, which he thought was minor, and that he had been signed as fit on transfer from another police force.
The OH adviser then told Wisbey at the end of November 2016 that he must pass one of two additional tests for colour vision deficiency.
He immediately arranged to be tested at City University, and a report showed he had passed one test but not the other. The force’s medical officer asked for a further test for a “steer” on the degree of severity of Wisbey’s deuteranomalous defect. According to the police force’s current guidance, severe deuteranomaly made officer unsuitable for firearms.
On 22 March 2017, an email was sent to the firearms group stating that the College of Police had issued new guidance around eyesight standards for colour deficiency, and that Wisbey had failed to meet the standards, and as such his status as an AFO had been removed.
At the same time David Lawes, the chief superintendent, decided Wisbey should be removed from the rapid response driving team over concerns his colour deficiency could also affect his performance in this role.
Further testing into the effects of Wisbey’s colour deficiency on his ability to perform firearms duty was carried out, and it was shown that Wisbey was in the “milder” deuteronomalous range and had reasonably good red-green discrimination.
The OH adviser reported this to Lawes saying it was up to management whether to have Wisbey retake the tests, but this was not necessarily required as vision defects did not change.
Wisbey brought claims of indirect discrimination against the force on 9 November 2017 for removing him from the firearms and rapid response driving teams due to his colour deficiency.
However, on 29 November, a meeting between Lawes, Brown and OH concluded that Wisbey’s results on testing on the last two occasions showed he now met the force’s current colour vision standard for firearms, and he was to return to his previous duties.
At this point no investigation had been carried out into the impact of Wisbey’s colour deficiency on his ability to carry out rapid response driving duties.
But following a period of retraining and having undergone updated medical examinations, Wisbey returned to both firearms and rapid response driving duties on 12 February 2018,.
The tribunal ruled Wisbey had been subjected to indirect sex discrimination by the City of London Police because he had been removed from the rapid response driving team, however not because he was removed from the firearms team.
While the police force had thoroughly investigated Wisbey’s colour deficiency in relation to health and safety risks with firearms, the ET found the force’s decision to take Wisbey off the rapid response driving team was “made in haste and abandoned quietly”.
The judge added that the absence of evidence of further investigation of colour vision standards for drivers “might suggest the [City of London Police] itself finds it hard to justify” why Wisbey was removed from rapid response driving responsibilities.
There was no award of compensation as Wisbey had been reinstated to both teams.
Judge Sarah Goodman said it was not clear that barring those with colour vision defects from rapid response driving was reasonably necessary or appropriate.
“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,” Goodman explained.
Thalis Vlachos, partner at Gunnercooke, said the ruling highlighted the importance that employers carrying out multiple investigations ensure they apply the same rigour to all issues at hand.
“Employers can’t just focus on one topic and just tick off the second – you need to make sure you have specific, detailed investigations on each and every issue involved,” Vlachos said.
“If employers are concerned about possible health and safety risks, they need to consider what the worker suffers from, if that is a legitimate danger to the public, what are the appropriate tests to determine this and investigate what the possible impact of their condition will be on the public.”
The City of London Police declined to comment, and Wisbey could not be reached for comment.