Employment Law Speed Read – 01/07/19

Background

The Claimant was a police officer in the Wiltshire Constabulary and suffers from a degree of hearing loss. The Claimant worked as a police constable on front-line duty with no adverse effects from 2011 and because the Claimant’s hearing loss had never caused her any problems in doing her job, it was not deemed to constitute a disability within the meaning of the Equality Act 2010.

The Claimant requested a transfer to the Norfolk Constabulary for family reasons. At a pre-employment health assessment, a medical adviser found that her hearing fell “just outside the standards for recruitment strictly speaking” but noted that the Claimant had undertaken an operational policing role without problem. The medical adviser made a recommendation that an “at-work test” was conducted in an operational environment. The recommendation was not accepted and a further medical exam was sought. A second medical advisor similarly found no deterioration in the Claimant’s hearing and agreed that her hearing standard fell just outside the range and that she would pass a practical test. The Claimant also sought advice from her own specialist who confirmed that her hearing levels were stable.

Despite this, Norfolk Constabulary declined the Claimant’s application because her hearing was below their standard.

Employment Tribunal

The Claimant brought a disability discrimination claim, asserting that she had been discriminated against because of a perceived disability. “Perception discrimination” is where A acts because he or she thinks that B has a particular protected characteristic, even if they in fact do not. The Claimant’s claim was upheld, the Tribunal found that the Claimant had an actual or potential disability, which could lead to them having to make adjustments to her role, either now or in the future. This amounted to direct discrimination. The Respondent appealed.

Employment Appeal Tribunal

The Employment Appeal Tribunal dismissed the Respondent’s appeal. The Respondent argued it was not enough that they had perceived that the Claimant might be disabled at some point in the future.

The Employment Appeal Tribunal disagreed and found that, on the evidence, the Respondent had perceived that the Claimant’s condition may well progress to her needing to be placed on restrictive duties and therefore perceived she had a disability in the sense of a progressive condition. In addition, the Employment Appeal Tribunal held that the phrase ‘normal day-to-day activities’ should be given an interpretation which encompasses the activities relevant to participation in professional life. The Respondent appealed again.

Court of Appeal

The Respondent argued that it was wrong to extend the legislation to cover not only those (wrongly) perceived to be currently disabled but also those who are perceived to possibly meet the definition of disability at some point in the future.

The Court of Appeal disagreed and held that if a Claimant is perceived to have a progressive condition, he or she is to be treated as disabled within the meaning of the Equality Act. Once it is accepted that perception discrimination falls within the terms of section 13 of the Equality Act (direct discrimination), there was no rational basis for holding that this applies to some forms of discrimination and not others.

Comment

This case is the first case to directly address the issue of direct discrimination based on a perceived disability and it demonstrates that employers will be held to a high standard.

If you have any questions on the above and how it will affect you, please do not hesitate to get in touch with a member of our employment team.