Case update(1): Disability discrimination – careful what you perceive

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

Yes, says the EAT 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 noted that Ms Coffey had been able to undertake an operational policing role and recommended that she have an at-work test. Instead, Norfolk Constabulary declined Ms Coffey’s request to transfer on the basis that her hearing was below the acceptable and recognised standard and it did not want to risk increasing the number of police officers on restricted duties.

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 direct disability discrimination claim at the Tribunal on the basis that she had been 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 this basis.

The EAT held that:

• an employer can discriminate directly because of a perceived disability; and
• the treatment of Ms Coffey amounted to direct discrimination.

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 the Ms Coffey to be disabled.

In respect of direct discrimination, the EAT confirmed it does not require the employee 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 the comparison would need to be with a hypothetical comparator who was a person not perceived to be disabled.  I.e. a person whose condition was not perceived as likely to deteriorate so that they would require restricted duties and who had the same abilities to do the job which Ms Coffey had.  This comparator would not have been treated in the same way. It was Norfolk Constabulary’s belief that Coffey’s hearing would deteriorate, which led it to reject her transfer request. Coffey had been treated less favourably because of the perception that she was disabled; therefore, she had been directly discriminated against.

Implications:  This is a helpful clarification of the test for perceived disability discrimination and what an employee has to show in order to establish the less favourable treatment was because of that perception.

The case also provides a useful learning point in that it is best to avoid making assumptions about someone’s abilities and instead rely on a proper assessment of their actual abilities. Norfolk Constabulary would have avoided expensive litigation if it had followed the medical advice to assess Ms Coffey’s actual abilities to perform the job.  By instead relying on an assumption that the condition might deteriorate in the future, Norfolk Constabulary unwittingly discriminated against Ms Coffey.