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84: Employment Appeal Tribunal upholds claim of discrimination based on perceived disability

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84: Employment Appeal Tribunal upholds claim of discrimination based on perceived disability
Leave your thoughts Jesper Christensen

By Jesper Christensen

The recent case of Chief Constable of Norfolk v Coffey is the first case to directly address the issue of perceived disability. The Employment Appeal Tribunal (EAT) held that a police officer who was turned down for a transfer because her hearing loss was marginally below the required standard had suffered direct discrimination based on her perceived disability. It is generally accepted that the Equality Act 2010 covers claims where the claimant does not actually have a protected characteristic, but the alleged discriminator perceives them as having that characteristic.

In 2011 Mrs Coffey applied to Wiltshire Constabulary to become a police constable. Medical tests revealed that she had mild hearing loss. National police recruitment medical standards stated that in borderline cases, consideration should be given to a practical hearing test to assess functional disability. Following this guidance, Wiltshire Constabulary arranged a practical functionality test, which she passed. This meant that Mrs Coffey was able to work as a police constable on front-line duty with no adjustments.

Two years later Mrs Coffey applied for a transfer to Norfolk Constabulary. A pre-employment hearing test recorded the same level of hearing loss as previously, but the Norfolk force refused to follow the recommendation of the medical adviser to arrange a practical functionality test. The Acting Chief Inspector (ACI) for Norfolk rejected Mrs Coffey’s application on the basis that she did not meet the national police recruitment standards on hearing. In the context of significant cost and resourcing pressures, the ACI did not wish to appoint someone who might not be fully operational.

Mrs Coffey brought a claim alleging that the ACI perceived her as having a disability in the form of a progressive condition that could potentially have a substantial effect on her ability to carry out day-to-day activities, and that the rejection of her transfer request was direct disability discrimination based on this perceived disability.

The Employment Tribunal upheld Mrs Coffey’s claim. It found that the ACI perceived that Mrs Coffey’s hearing loss could lead to the Norfolk Constabulary having to make adjustments to her role, now or in the future.  The rejection of her application for this reason amounted to direct disability discrimination.

The EAT dismissed Norfolk Constabulary’s appeal. The ACI’s reference to Mrs Coffey being restricted operationally could only mean that she perceived that Mrs Coffey had a progressive condition within the meaning of the Equality Act 2010. The Tribunal had also been entitled to conclude that the ACI’s rejection of Mrs Coffey’s application amounted to direct discrimination. A person with the same abilities as Mrs Coffey, whose condition the ACI did not perceive as likely to deteriorate so that they would require restricted duties, would not have been treated as Mrs Coffey was.

It was clear in this case that Mrs Coffey’s hearing loss met the legal test for a progressive condition under the Equality Act 2010. However, it will often be much more difficult to show that a decision maker perceived that a particular health condition satisfied the definition of a disability. Nevertheless the EAT’s decision is a reminder that making stereotypical and incorrect assumptions may result in liability for direct discrimination on the basis of a perceived disability.

5 March 2018

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