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2nd February 2018

Perceived disability discrimination

2nd February 2018

Perceived disability discrimination

Andrew Willshire

Posted: 2nd February 2018

T: 023 8048 2160

E: Email Me

In the recent case of Chief Constable of Norfolk v Coffey, the Employment Appeal Tribunal (EAT) has considered a claim for direct disability discrimination based on the employer’s perception that an employee’s condition would become a disability in the future.

Background

Under the Equality Act 2010 (EqA 2010), disability is one of the protected characteristics. A disability is defined as follows:

“A person (P) has a disability if P has a physical or mental impairment, and the impairment has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities”.

Furthermore, a person will be deemed to have an impairment that has a substantial adverse effect on their normal day-to-day activities if they suffer from a progressive condition and can show the following:

  • P has a progressive condition;
  • as a result of that condition P has an impairment which has (or had) an effect on P’s ability to carry out normal day-to-day activities, but
  • the effect is not (or was not) a substantial adverse effect.

P is to be taken to have an impairment which has a substantial adverse effect if the condition is likely to result in P having such an impairment.

It is commonly agreed that the EqA 2010 permits claims where the claimant does not have a protected characteristic, but an alleged discriminator perceives them as having that protected characteristic. However, such claims can potentially face problems in the context of disability discrimination, because of the need to satisfy the definition of a disability.

Direct discrimination

Under the EqA 2010, direct discrimination occurs where “because of a protected characteristic, A treats B less favourably than A treats or would treat others”.

Case Facts

Mrs Coffey was a police constable. She had a degree of hearing loss that placed her just outside national standards for hearing loss for the police. The Home Office laid down National Recruitment Standards which included Medical Standards for Police Recruitment. There was a standard for hearing loss. However, the Wiltshire Constabulary arranged a practical functionality test for Mrs Coffey, which she passed. This allowed her to work as a constable in the police force.

Following this, Mrs Coffey then applied to transfer to the Norfolk Constabulary. She underwent a hearing test which recorded that she had the same level of hearing loss as previously identified. The Acting Chief Inspector (ACI) for Norfolk however rejected Mrs Coffey’s application. This was on the grounds that she did not meet the national standards on hearing. Significantly, The Norfolk Constabulary did not arrange a practical functionality test.

Tribunal Proceedings

Mrs Coffey issued proceedings in the employment tribunal (ET) alleging that the ACI perceived her as having a disability and that the decision to reject her application was direct disability discrimination. The ACI denied the claims.
The ET upheld the claims. It ruled that the ACI perceived that Mrs Coffey had an actual or a potential disability which could lead to the Norfolk Constabulary having to make adjustments to her role, either now or in the future. The ET concluded that this amounted to direct discrimination. The Norfolk Constabulary appealed to the EAT.

EAT Decision

The EAT dismissed the appeal. 

The evidence before it had shown that the ACI perceived that Mrs Coffey’s condition could well progress to the extent that she would need to be placed on restricted duties in the future. The ACI had therefore perceived that Mrs Coffey had a disability in the sense of a progressive condition. In other words, even if he felt that she did not have a disability, he thought it would become a disability in due course.

Comment

This is a helpful case as it is the first case to directly deal with perceived disability discrimination. Both employers and employees should therefore be aware:

  1. Claims can be issued under the EqA 2010 on the grounds of perceived direct disability discrimination. An employee can bring a claim if they have been treated less favourably due to a perceived disability.
  2. The Tribunal will need to consider if the accused perceived the person subject to the discrimination as having the substantial impairment in line with the definition set out in the EqA 2010. In this case, it was the employer’s perception that the condition would deteriorate in the future, and would, therefore, amount to a disability, that gave rise to the liability for direct discrimination.

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Andrew Willshire

Posted: 2nd February 2018

T: 023 8048 2160

E: Email Me