Perceived disability

Chief Constable of Norfolk v Coffey

A police officer, who was turned down for a transfer because her hearing loss was marginally below the medical standard for police recruitment, had suffered direct discrimination because of a perceived disability.

Background

Ms Coffey is a police officer. When she applied to become a police officer, she had mild hearing loss but, after a functionality test which she passed, her application was approved. Two years later she applied for a transfer to the Norfolk force. She had a pre-employment health assessment and the medical adviser recommended a further test as her hearing was below the usual standard for recruitment. But this wasn’t accepted by the Norfolk force and it sought an opinion from another medical adviser. The adviser noted that her hearing had not deteriorated in the two years she’d been a front-line police officer and said she would pass a practical test. Despite this, the Norfolk police rejected her transfer request because her hearing was below the published medical standard and there was a risk of increasing the pool of officers on restricted duties.

She brought a tribunal claim of direct disability discrimination, not on the basis that she had a disability but rather on the basis that she’d been treated less favourably because she was perceived to have a disability, in the form of a progressive condition that could develop to the point of having a substantial impact on her ability to carry out day-to-day activities. A tribunal upheld her claim, concluding that the Norfolk force had perceived her to have a disability which could not be accommodated by reasonable adjustments, or perceived she would require adjustments in the future. The Norfolk force appealed.

The EAT rejected the appeal. The applicable law (on progressive conditions) is contained in Sch. 1, para. 8 of the Equality Act – and the Norfolk police hadn’t taken this on board. It states that where someone has a progressive condition that results in an impairment having an effect on his or her ability to carry out day-to-day activities, but the effect is not a substantial adverse effect, it will still be treated as such if it is likely that the condition will result in a substantial adverse effect in future. The Norfolk police’s reference to Ms Coffey being on restricted duties could only be read as it perceiving that she had a progressive condition which could worsen. The tribunal therefore had been entitled to find that Norfolk police perceived Ms Coffey to be disabled.

The EAT noted: ‘There would be a gap in the protection offered by equality law if an employer, wrongly perceiving that an employee’s impairment might well progress to the point where it affected his work substantially, could dismiss him in advance to avoid any duty to make allowances or adjustments’.

The Norfolk force appealed.

Court of Appeal decision

The appeal was dismissed.

While having difficulty with some of the tribunal’s reasoning, the Court of Appeal held that perception discrimination is covered by s. 13 of the Equality Act (direct discrimination) and it endorsed the EAT’s approach that the discriminator’s actual knowledge of the legal definition of disability is irrelevant.

Link to judgment: https://www.bailii.org/ew/cases/EWCA/Civ/2019/1061.html

Comment

This case is a useful reminder that employers should not make stereotypical assumptions about conditions – and whether they will deteriorate - as they will be liable for perceiving employees to be disabled when they may not be.

It reiterates the protection offered to those who do actually have conditions that may deteriorate. Prior to the Equality Act, employees would have to show that their condition was definitely going to deteriorate which was a difficult concept, particularly for those who very much hoped it would not. The Equality Act 2010 addressed this by introducing an automatic assumption that progressive conditions would deteriorate.