Case Update (1): Disability Discrimination – Careful what you perceive

What do we already know?

We updated you in our February 2018 Newsletter Case update (1): Disability discrimination – careful what you perceive on EAT’s decision in Chief Constable of Norfolk v Coffey.  The EAT held that an employer can directly discriminate against an employee even if they do not actually have a disability.  It is enough that an employee is treated less favourably because the employer perceives they have a disability.

The employer appealed against the decision to the Court of Appeal.

What’s new?

The Court of Appeal has agreed with the EAT and decided that it can be direct discrimination to treat a person less favourably because it is thought that they have a disability, even if they do not in fact meet the legal definition of disability.

For further detail on the decision please read on…

Summary:  Can an employer discriminate directly because of a perceived disability?

Yes, says the Court of Appeal in Chief Constable of Norfolk v Coffey, available here.

Facts:  Lisa Coffey was a police constable. Although she had some hearing loss which was marginally outside the range set for recruitment, she had passed a practical functionality test and was therefore allowed to join the police force.

In 2013 she applied to transfer to Norfolk Constabulary. She attended a health assessment, which found that her hearing was just outside the usual standards for recruitment. The medical adviser confirmed that Mrs Coffey’s hearing levels were stable and noted that Ms Coffey had been able to undertake an operational policing role.  The medical adviser recommended that Mrs Coffey have an at-work test.

However, Norfolk Constabulary did not follow the medical adviser’s recommendation of an at-work test.  Instead, it declined Ms Coffey’s request to transfer on the basis that her hearing was below the usual standard.  Also, it said that it did not want to risk increasing the number of police officers on restricted duties if Mrs Coffey’s hearing standard was currently unsuitable for the job and/or deteriorated (as this would reduce the pool of officers who were operationally deployable).

Ms Coffey’s hearing loss did not meet the legal test of a disability as it had no substantial adverse effects on her ability to carry out normal day-to-day activities. Therefore Ms Coffey brought a Tribunal claim for direct perception 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.  Ms Coffey said that this perception was demonstrated by Norfolk Constabulary’s concern that she would end up on restricted duties.

The Tribunal upheld Ms Coffey’s claim.  Norfolk Constabulary appealed to the EAT.

The EAT agreed with the Tribunal’s decision and held that Ms Coffey could bring her claim on the basis of direct perception discrimination. The EAT confirmed an employee is not required to actually have a disability – only that they are treated less favourably because of disability. The provision is therefore sufficiently wide to cover a case where someone is treated less favourably because of a perceived disability.

The EAT held that Norfolk Constabulary thought Ms Coffey’s condition could well progress to the extent that she would have to be placed on restricted duties. If it were to progress to that extent, then her condition would amount to a disability.  This meant that Norfolk Constabulary did perceive Ms Coffey to be disabled.

Norfolk Constabulary appealed to the Court of Appeal.

The Court of Appeal confirmed the EAT’s decision that Norfolk Constabulary had directly discriminated against Ms Coffey on the basis that it had perceived her to be disabled.  The Court of Appeal noted that the police were influenced by stereotypical assumptions about the effects of hearing loss. It said the police’s perception of a risk that she would not be able to work in the future indicated she was perceived to have a disability in the form of a progressive condition.

This Court of Appeal’s decision is the first to consider whether direct discrimination covers less favourable treatment based on a perceived protected characteristic. The Court said it did, and that the claim depends on whether the employer perceived the employee to have an impairment which is likely to have a substantial effect on their ability to carry out normal day-to-day activities in the future.

Implications:  This is an important decision which confirms that claims can be brought based on a perception of disability.  This case highlights the dangers of making assumptions about an employee’s health when making decisions relating to their employment, particularly where the employee has or could develop a progressive condition. Instead, employers should base their decisions on medical advice on the employee’s condition.