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Disability Discrimination: Important new case law

Where an employer is found to have discriminated against an individual on the basis of their disability, they will be in breach of the Equality Act…

Employees, and prospective employees, are given protection from being discriminated against on various grounds, one of which is disability.  Where an employer is found to have discriminated against an individual on the basis of their disability, they will be in breach of the Equality Act 2010.

In a recent disability discrimination case, Chief Constable of Norfolk v Coffey, the Employment Appeal Tribunal considered whether an employer could be liable for disability discrimination where the employee was not actually disabled, but where they had an impairment which led the employer to perceive them to be disabled. 

What is a disability?

A person will be considered to be disabled under the Equality Act if they have a physical or mental impairment which has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities. 

Further, where an individual is suffering from a progressive condition they will be considered to be disabled if they have an impairment which is likely to have a substantial adverse effect in the future, even if its current effect is not substantial. 

What happened?

The Claimant, a police officer, was turned down for a transfer to the Norfolk Constabulary because her hearing was marginally below the medical standard for police recruitment.

In 2011 the Claimant had applied to the Wiltshire Constabulary to become a police constable.  At a medical examination it was discovered that she had mild hearing loss with tinnitus, which caused her hearing to fall marginally below the medical standard.  Nevertheless, the Wiltshire Constabulary arranged a practical functionality test which the Claimant passed, allowing her to work on front-line duties. 

In 2013 the Claimant applied to transfer to the Norfolk Constabulary.  At a pre-employment health assessment it was noted that her hearing was just below the medical standard, but that she had undertaken an operational policing role at another force without any issues.  The medical advisor recommended she undergo an ‘at work’ test, but this was not carried out.  Instead, her request to transfer was declined on the basis that her hearing was below the medical standard and it would not be appropriate to overlook this given the risk of increasing the pool of officers on restricted duties. 

The Employment Tribunal upheld the claims. It found that Norfolk constabulary perceived that Mrs Coffey had an actual or a potential disability which could lead to them having to make adjustments to her role, either now or in the future, and declining the transfer on this basis amounted to direct discrimination. The Norfolk Constabulary appealed to the EAT.

What did the EAT decide?

Norfolk Constabulary argued that had not perceived the Claimant to be disabled as they did not consider her hearing to have a substantial adverse effect on her.  They claimed that it was not sufficient that they might have considered that the Claimant might become disabled at some date in the future. 

The EAT rejected this argument, and their appeal.  Although the Employment Tribunal had not expressly referred to progressive conditions, the evidence plainly demonstrated that the Norfolk Constabulary had considered that the Claimant’s condition would progress to the extent that she would need to be placed on restricted duties.  Therefore, they must have perceived that the Claimant had a disability in the sense of a progressive condition. 

The fact that the discriminator did not consider the individual to be protected by the Equality Act is irrelevant; protection is not dependent on knowledge of disability law.  It was only relevant that the Claimant’s condition, as it was perceived by the Constabulary, met the criteria to be considered a disability under the Equality Act. 

What does this mean for me?

This case is the first to directly address perceived disability under the Act.  It confirms that such claims are permissible and can be brought as direct discrimination claims.  The case also highlights the difficulties a Tribunal will face in trying to determine whether an employer perceived an individual as disabled; the Tribunal will have to consider the employer’s perception in relation to each element of the definition of disability as set out in the Act. 

Whilst the outcome of this case is not surprising, it does serve as an important reminder that you must be careful when dealing with employees with impairments.  It is possible that your may be liable for disability discrimination even where the employee is not actually disabled, and where you do not think that you are in breach of the Equality Act. 

Paul McFarlane is the Employment, Pensions and Immigration team at Weightmans LLP and is based in London. Paul advises employers in all sectors on all aspects of discrimination law and has extensive experience of advising police forces across the country. If you have any questions please do not hesitate to contact Paul or speak to your usual Weightmans advisor. 

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