Perceived Disability Discrimination
Under the Equality Act 2010, direct discrimination occurs when the reason for a person being treated less favourably than another is one of the protected characteristics covered by the Act. This means that someone who does not have a protected characteristic but has suffered less favourable treatment because they were wrongly thought to do so is protected under the Act.
In Chief Constable of Norfolk v Coffey, the Employment Appeal Tribunal (EAT) upheld an Employment Tribunal (ET) decision that a police constable who was turned down for a transfer from one force to another was a victim of direct perceived disability discrimination.
Lisa Coffey suffers from bilateral mild sensorineural hearing loss with tinnitus. When she first applied to become a police constable with the Wiltshire Constabulary she had undergone a medical which found that her hearing was just outside the National Recruitment Standards. However, the Wiltshire Constabulary had followed guidance accompanying the Standards and given Mrs Coffey a practical test which she duly passed. She proceeded to work on front-line duty and continued to do so without any difficulty.
In September 2013, Mrs Coffey applied to transfer to the Norfolk Constabulary. She was successful at the interview stage, subject to a medical assessment. The medical adviser also found that her hearing was just outside the required standard but noted that she undertook an operational policing role without any problems and recommended an 'at-work test' to see if she was able to operate safely. However, this recommendation was not taken up by the Norfolk Constabulary, which sought further clarification from another medical adviser. The report concluded that there had been no deterioration in Mrs Coffey's hearing: her hearing levels were stable and she would pass a practical test. In spite of this, no individual assessment of her capabilities was carried out and the Acting Chief Inspector declined Mrs Coffey's transfer application on the ground that her hearing was 'below the standard for recruitment'.
Mrs Coffey claimed that she was a victim of direct discrimination on the basis of perceived disability. As her hearing loss did not have a substantial adverse effect on her ability to carry out day-to-day activities, including working activities, she was not actually disabled. The Acting Chief Inspector insisted that she did not regard Mrs Coffey as a disabled person. Her decision was made on the basis that Mrs Coffey could in future become permanently restricted with regard to the duties she was able to perform were her hearing to deteriorate, leaving the Constabulary with fewer officers to deliver front-line services.
The ET found that Mrs Coffey had been treated less favourably because of her perceived disability. Despite the Acting Chief Inspector's protestation to the contrary, the only justification for not employing her had been that she did not meet the required medical standards for hearing. The ET could only conclude that the Acting Chief Inspector perceived that she did have a disability which could not be accommodated by making reasonable adjustments or perceived that she had a progressive condition that would require adjustments to be made for her in the future.
The EAT upheld the ET's decision. It could see no reason to exclude from disability law a perception, wrongly conceived, that an impairment that currently has no substantial adverse effect could do so at some point in the future. Such an approach is consistent with EU case law and the protection offered by equality law would be lacking 'if an employer, wrongly perceiving that an employee's impairment might well progress to the point where it affected his work substantially, could dismiss him in advance to avoid any duty to make allowances or adjustments'.
In the EAT's view, the ET had made no error of law in finding that Mrs Coffey had been subjected to direct discrimination. It was fully entitled to conclude that a hypothetical comparator with the same abilities as she had but who was not perceived to be disabled – whose condition was not perceived as likely to deteriorate so that they could no longer perform the same duties – would not have been treated in the same way.