The case of The Chief Constable of Norfolk v Coffey is an important reminder that an individual does not always have to have a particular protected characteristic in order to be discriminated against on the basis of that characteristic. In the first case of this kind, a police officer was found to have been discriminated against because of a perceived rather than actual disability.
Disability under the Equality Act
A person is disabled for the purposes of the Equality Act 2010 (‘the Act’) if they have a physical or mental impairment and that impairment has a substantial and long-term adverse effect on that person’s ability to carry out normal day-to-day activities. This means that just having a particular medical condition does not automatically mean that a person is disabled as the effect on their abilities must be considered.
However, progressive conditions do fall under the definition of disability. These are conditions which have some impairment or effect on a person’s day to day activities currently and are likely to have a substantial adverse effect in the future.
If an employer treats an employee or applicant less favourably because of a disability, this will be in breach of the Act. They will also be in breach should they treat an employee less favourably because they perceive that person to have a disability, even if that person does not actually have a disability.
Ms Coffey was a serving police offer with Wiltshire Constabulary. During the medical examination required as part of her application to become a PC, it was discovered that she suffered from a type of hearing loss. Although overall her hearing was found to fall below the police National Recruitment Standards, Ms Coffey passed a practical functionality test and worked on front-line duty in Wiltshire with no side-effects or restrictions.
In 2013 Ms Coffey applied to transfer to Norfolk Constabulary (‘Norfolk’). A medical assessment found that she still had significant hearing loss in both ears and was just outside the standards for recruitment, but recommended that as she had been undertaking an operational police role with no issues that an at-work test should be conducted. The decision maker for Norfolk, an ACI Hooper, rejected the recommendation for a practical test and declined Ms Coffey’s application on the basis that her hearing was below the medical standard.
Ms Coffey brought a claim against Norfolk for direct discrimination on the grounds of perceived disability, i.e that another applicant for transfer who had the same abilities as Ms Coffey but was not perceived as disabled would have been treated differently.
At first instance, the tribunal found that ACI Hooper had directly discriminated against Ms Coffey in refusing her application to transfer on the basis she was perceived to have a disability. Ms Coffey’s transfer had been refused on the basis of assumptions as to the effect Ms Coffey’s condition would have on her, including that she would become an officer only capable of restricted duties, rather than on an assessment of her actual abilities.
Norfolk appealed this finding to the Employment Appeals Tribunal (‘EAT’).
Decision on Appeal
On appeal, Norfolk argued that the tribunal had considered that ACI Hooper had perceived Ms Coffey would potentially become disabled in the future and this was not the correct test to apply. ACI Hooper had not perceived Ms Coffey’s hearing loss to have a substantial and adverse effect on her day to day duties so did not perceive her as disabled. Ms Coffey simply did not meet the standards on hearing for recruitment.
However, the EAT disagreed. Although the tribunal at first instance had not explicitly referred to progressive conditions, it was clear that ACI Hooper had perceived Ms Coffey to have a condition which was likely to progress with time to the point where she would be on restricted duties not merely that she might potentially develop a disability in the future. As progressive conditions fall under the definition of disability, ACI Hooper had directly discriminated against Ms Coffey on the grounds of perceived disability.
The above is the first case to come to the EAT regarding perceived disability discrimination under the Act. As it demonstrates, employers should ensure decisions affecting an employee or applicant are based on an individual assessment of their abilities and not any stereotypical assumptions about what the implications of a particular medical condition may be. Any guidance or recruitment standards should reflect this.
It is also advisable for medical evidence to be obtained where possible to inform decisions about recruitment where an applicant has a condition which may affect their ability to perform the duties of the role, as one of the key flaws in the decision making in this case was that the decision was not based on the findings of a functionality test, particularly when this had been recommended by medical professionals.
Further, where a job applicant does have a condition which is likely to prevent them from fulfilling the duties of that role in future, employers should first consider if it is possible for that employee to still serve in that role for a reasonable amount of time.
For further information please contact a member of our Employment team.