Employment Law Speed Read – 08/01/18
8th January, 2018
This week we look at an Employment Appeal Tribunal (EAT) which upheld a finding of disability discrimination by perception.
The Chief Constable of Norfolk v Coffey
In The Chief Constable of Norfolk v Coffey the Employment Appeal Tribunal has upheld that a claim based on the perception of a disability, can amount to direct disability discrimination under the Equality Act 2010.
Mrs Coffey (C) was a staff member with the Wiltshire Constabulary when she applied to become a police constable. As part of her recruitment, she was required to undergo a medical, which showed that she had suffered hearing loss, and consequently did not meet the Police’s national standards.
However, the Police’s recruitment guidance stated that a functionality test could be used to assess a candidate’s suitability in the event that their hearing was a borderline case. C passed this functionality test and successfully became a fully operational Police constable. C did not require any adjustments to carry out this role.
C later applied for a transfer to Norfolk Constabulary (N). N rejected her transfer request on the basis that she did not meet the national standards for hearing loss. N did not carry out a functionality test of C’s hearing.
C brought a claim for direct discrimination against N for rejecting her application on the basis of a perceived disability.
N denied that it had discriminated against C because of a perceived disability and argued that because of Police cuts, it could not afford to recruit an officer who may not be able to fully carry out the role of a frontline officer.
The Employment Tribunal (ET) agreed with C, and found that N had rejected C’s application because it had perceived C’s hearing loss as a disability or a potential disability which could require future adjustments. The ET held that this amounted to direct discrimination.
Employment Appeal Tribunal
N appealed on the basis that the ET had erred in finding that N had made a perception of a future disability. Further, the ET had failed to consider the definition of disability when assessing whether N had made this perception.
The EAT dismissed the appeal. The EAT found there was plentiful evidence to show that N had perceived C as having a progressive condition that amounted to a disability, which may have needed allowances or adjustments in the future. In rejecting C’s transfer, N had carried out an act of direct disability discrimination.
The EAT found that the ET had not used the wrong test in determining N’s perception of disability. The EAT emphasised that it was correct to assess whether N had perceived C as having an impairment with the features set out within the legislation. It did not have to show that N perceived C as disabled as a matter of law, as this would depend on N’s knowledge of disability law.
This case confirms that disability discrimination claims based on a perceived or potential disability are permissible. Therefore, employers should be alert to the fact that they may be directly discriminating against candidates if they refuse applications on a belief that a candidate’s condition could require them to make adjustments in the future if they were to be employed.
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.