Chief Constable of Norfolk v Coffey
The EAT has upheld a finding of direct disability discrimination in relation to a non-disabled job applicant, whose application was rejected on the basis of perceived disability.
The case involved a serving police officer, who was refused a transfer to another force on the basis that she did not meet the Police National Recruitment Standards relating to hearing. The accompanying guidance stated that if evidence of hearing loss were border-line, then consideration should be given to a hearing function test. Following this guidance, the officer was asked to perform such a test by her employer, which she passed.
However, when the hearing loss was identified during the officer's transfer application, her prospective employer failed to follow the function-test recommendation.
Her application was rejected on the basis that her hearing was below the acceptable standard.
The officer brought claims of perceived disability and direct discrimination.
The Tribunal found that the prospective employer had perceived the applicant to have an actual or potential disability which could require future adjustments to her role.
On appeal, the EAT agreed. It was irrelevant that her prospective employer did not consider the officer's condition to be an actual disability. What matters in such cases is whether the decision-maker's perception of an employee's condition meets the test for a disability within the meaning of the Equality Act. In the present case, the prospective employer had clearly rejected the officer's application, at least in part, because it thought that her hearing impairment could well progress to the extent that she would have to be placed on restrictive duties, thereby having a substantial adverse effect on her day-to-day activities. Since these are the features of a disability under the Equality Act definition, the employer had unlawfully treated the officer less favourably based on a perceived disability, even though the officer was not disabled and the employer did not believe her to be disabled.
What’s the implications here?
This is the first case to address perceived disability discrimination directly since it was introduced into UK legislation. It highlights a trap into which employers can unwittingly fall when taking decisions influenced by employees' physical or mental condition. In such circumstances, employers should not focus solely on whether a disability exists in fact. Instead they should examine the rationale behind a particular course of action, and whether they are motivated by factors which, together, meet the definition of disability in the Equality Act. So be very careful!