The pitfalls of perceived disability discrimination

15 Feb 2018 By Kevin Charles

Treating an employee less favourably based on assumptions about their health could prove a costly mistake, as Kevin Charles reports in light of a recent EAT case

In the case Chief Constable of Norfolk v Coffey, the acting chief inspector of the Norfolk Constabulary rejected a request for a transfer from a police constable because of a ‘perceived’ disability.

Ms Coffey was a police constable with the Wiltshire Constabulary and suffered from bilateral mild hearing loss with tinnitus. However, this did not have any adverse effect on her ability to carry out normal day-to-day activities or perform her role.

Coffey applied to the Norfolk Constabulary for a transfer. She disclosed that she had some upper hearing range loss but made it clear that no adjustments to her role had been necessary because of this and she carried out frontline operational duties without any problems. She underwent a pre-employment health check and medical, which recommended that while her hearing loss was ‘just outside the standards for recruitment strictly speaking’ she should have an ‘at-work test’.

This recommendation was not accepted by the acting chief inspector of Norfolk Constabulary, who turned down Coffey’s request for a transfer because her hearing was ‘below the acceptable and required standards for recruitment’, and there was a ‘risk’ that she may not be able to perform the role of a frontline officer. This seemed to be based on the thinking that Coffey’s hearing may deteriorate, and she would have to be placed on restricted duties.

Less favourable treatment

Coffey brought a claim of direct discrimination based on ‘perceived disability’. The employment tribunal agreed and found that the acting chief inspector perceived that either Coffey had a potential disability or an actual disability that could lead to them having to make adjustments to her role as a frontline officer in the future. Accordingly, the tribunal concluded that Coffey was treated less favourably because of her perceived disability.

On appeal, the Employment Appeal Tribunal (EAT) upheld the tribunal’s findings. First, they made it clear that the law – namely schedule 13 of the Equality Act 2010 – is wide enough to cover the situation where someone does not have a disability but is treated less favourably because of a perception that they have a disability; and second, that the definition of ‘disability’ also includes ‘progressive conditions’ where an impairment is likely to deteriorate. 

Applying the law, the EAT found it would amount to discrimination if an employer knows that an employee has an impairment but does not consider it amounts to a disability, but wrongly perceives that in the future it may amount to a disability and treats the employee less favourably because of this.

Accordingly, the EAT upheld the tribunal’s decision that in turning down Coffey’s request for a transfer she was treated less favourably because of her ‘perceived’ disability, which amounted to direct discrimination.

This is the first appeal-level case relating to perceived disability and illustrates the wide reach of discrimination law, which covers not only disability, but discrimination based on perception in relation to any protected characteristic. In the above case, the EAT gave the example of an application form from a white man with an African-sounding name being rejected because the employer mistakenly thinks he is black. Unlawful discrimination has also been found where a heterosexual man was subjected to homophobic abuse, in the case of English v Thomas Sanderson.

The crucial message employers need to take away from these cases is ensuring that staff are fully aware either through formal training, written policies or induction sessions that discriminatory conduct will not be tolerated regardless of whether it is directed at someone with a protected characteristic or not. 

Kevin Charles is a consulting barrister at Crossland Employment Solicitors

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