In the case of Chief Constable of Norfolk v Coffey the EAT has upheld the decision of an employment tribunal (ET) that a police officer had suffered direct discrimination because of a perceived disability.
Ms Coffey (the Claimant) was a police officer for the Wiltshire Constabulary. Following a routine medical (in 2011) it was found that she suffered from hearing loss with tinnitus. She was sent for, and passed, a functionality test and was not considered disabled for the purposes of the Equality Act.
The Claimant then applied for a position at the Norfolk Constabulary (the Respondent) two years later in 2013. She disclosed her hearing diagnosis and was sent for a pre-employment health assessment whereby it was noted that her hearing was “just outside the standards for recruitment, strictly speaking”. However, the medical examiner confirmed that she had undertaken an operational policing role at her previous employer without any problems and that, in their opinion, the Claimant would be able to pass her practical test and perform her role. The medical examiner also pointed out that the Claimant’s hearing had not deteriorated in the two years between diagnosis and applying to the Respondent. It was recommended by the medical examiner that the Claimant take an ‘at work’ test, however this was not actioned by the Respondent. The Claimant’s application to transfer was rejected by the Respondent on the basis that her hearing was below the acceptable standard and there was a risk she might end up on restricted duties (putting a strain on the Respondent’s resources).
The Claimant brought a claim for direct discrimination on the basis that she had been treated less favourably because she was perceived to have a disability, in the form of a progressive condition which could develop into a disability (i.e. deafness) during the course of the Claimant’s employment. Since this perception was the reason for refusing the Claimant's transfer, the ET upheld the discrimination claim.
The Respondent appealed the decision as it was argued that the ET had erred in finding that it had perceived the Claimant to be disabled and in finding that she had been treated less favourably as a result. The EAT upheld the ET’s findings that the Respondent refused the transfer because there was a risk that the Claimant would be placed on restricted duties in the future. The EAT found that this comment could only be interpreted as the Respondent perceiving that the Claimant had a progressive condition and as such the ET had been entitled to conclude that the Claimant had been subjected to direct discrimination as a result. In doing so, the EAT have confirmed the correct test to apply when determining whether disability is perceived: the answer to that question “will not depend on whether the putative discriminator A perceives B to be disabled as a matter of law; in other words, it will not depend on A's knowledge of disability law. It will depend on whether A perceived B to have an impairment with the features which are set out in the legislation.”
This case appears to be the only authority on how to determine whether or not disability is perceived it is also a useful reminder employers’ obligations relating to discrimination stem right from the recruitment stage. Employers need to be careful that applicants who suffer from medical conditions which are not considered to be a disability, are not overlooked for employment because they are perceived to have a disability or because they fear the condition might develop into one in the future.