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Perceiving disability in non-disabled applicants is discriminatory, EAT rules

2 Jan 2018 By Miriam Kenner

Police force rejected officer after assuming hearing loss would require future adjustments

The Employment Appeal Tribunal (EAT) has upheld a finding of disability discrimination by perception in the case of Chief Constable of Norfolk v Coffey, which clarifies that it is unlawful to reject a non-disabled job applicant because of a perception that a condition could become a disability in future.

The judgment, delivered on 19 December 2017, showed that the EAT will consider such decisions as direct disability discrimination and that employers should avoid drawing conclusions about disability where conditions exist.

The claimant, Lisa Coffey, brought a tribunal claim after being refused a transfer from Wiltshire to Norfolk Constabulary, as she did not meet the Police National Recruitment Standards because of a hearing condition.

The tribunal asked if her employer perceived Coffey as disabled because of her hearing loss, and whether its rejection of her transfer application amounted to less favourable treatment because of it.

The EAT upheld the tribunal’s decision, which found that Coffey suffered direct disability discrimination as the constabulary perceived either that she had disability that reasonable adjustments could not accommodate, or that she would require future adjustments.

The respondent employer treated her less favourably because of its perception that she was disabled, the EAT found. Norfolk decided that Coffey was a "non-disabled permanently restricted officer" and that financial restraints would mean greater pressure on operationally deployable officers.

Coffey was a serving police constable in Norfolk from 1993 to 1997. She did not suffer from hearing loss or tinnitus during that time. She joined the Wiltshire Constabulary as a staff member in 2009 and in 2011 applied to the Wiltshire Constabulary to become a police constable. A medical test showed that she suffered from bilateral mild sensori-neural hearing loss with tinnitus.

Wiltshire followed Police National Recruitment Standards guidance, arranging a practical functionality test, which she passed. Coffey worked as a police constable on frontline duty with no adverse effects from 2011 onwards.

In 2013, she applied to transfer back to Norfolk Constabulary. She disclosed that she had some upper-range hearing loss, enclosing the functionality test report showing that no adjustments had been required. That November, she was told she had been successful at the interview stage, subject to a fitness and pre-employment health assessment.

The medical adviser found she had significant hearing loss in both ears and was “just outside the standards for recruitment, strictly speaking” – but noted that she had undertaken an operational policing role with the Wiltshire Constabulary without any undue problems. It recommended her for a practical test.

Norfolk Constabulary, however, rejected the recommendation, instead seeking further advice from a different medical adviser. In December, that adviser said that the 2011 and 2013 audiograms were similar – just outside the range – and concluded there had been no deterioration in Coffey’s hearing since 2011 and she would pass a practical test.

The claimant saw an ENT specialist, who confirmed that her hearing levels were stable and sent a copy of his report to the constabulary, but this was rejected.

Norfolk rejected her transfer request without a function test because her hearing was just below the acceptable standard, based on concerns that she might end up on restricted duties should her hearing deteriorate.

The EAT found that if the acting chief inspector who made the decision read the standard as a whole, or the accompanying circular, she would have realised the importance of individual assessment.

"There would be a gap in the protection offered by equality law 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," the EAT found.

Kirsti Laird, senior associate at law firm Charles Russell Speechlys, told People Management the EAT’s decision was sensible. By confirming the tribunal’s finding of direct discrimination, it confirmed the right decision, she said. “This is an individual who had a condition that did not make her disabled. She was already functioning well in the same job – in a different city.”

The case related to perceived progressive disability based on an incorrect belief that the individual’s condition, although not amounting to a disability now, would progress to become a disability, Laird said.

“It’s interesting that the individual was (apparently) not looking for any cash or compensation but for the transfer refusal to be expunged from her record,” she added. “The case emphasises the difficulty that employers have in understanding and applying the law. Here, the decision-maker appears to have genuinely believed that the individual was not disabled. However, she thought that the risk of her becoming disabled in the future was higher than with other applicants and didn’t think that was an acceptable risk given other issues that she had to take into account.”

It is important for an applicant to correctly identify the type of discrimination being claimed, Laird said: “If she had claimed indirect discrimination or discrimination arising from disability then the employer would have been able to seek to objectively justify any discrimination based on other legitimate aims, such as the need to have a fully deployable workforce in the future.”

In this case, however, the EAT was satisfied that it was properly a direct discrimination claim. She was treated differently than someone else with her actual abilities because she was perceived to have a progressive condition that would require her to be put on restricted duties.    

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