Is it unlawful disability discrimination to refuse employment because of a perception of a risk of future inability to work in a particular role?
The definition of direct discrimination in S13 Equality Act 2010 is sufficiently wide that it provides protection from discrimination based on a perceived protected characteristic.
Chief Constable of Norfolk v Coffey
The Claimant, Ms Coffey was a police officer working for the Wiltshire Constabulary. When she applied to join the police in 2011 it came to light that she had some difficulties with her hearing. Notwithstanding this, the Claimant passed a functional hearing test and joined the force. She was able to do her ‘normal day-to-day activities’ and in 2013 she applied for a transfer to the Norfolk Constabulary. Her application was refused because, on a medical test, her hearing fell “just outside the standards for recruitment, strictly speaking“.
The Claimant did not consider herself a disabled person so brought a claim of discrimination on the basis that the force had treated her less favourably because it perceived she had a disability. Her claim succeeded before an employment tribunal and this was upheld by the EAT, who said that whether or not an employer has directly discriminated against a person will not depend on whether it perceives that person to be disabled as a matter of law. It therefore does not depend on knowledge of disability discrimination law but on whether the employer perceived that person “to have an impairment with the features which are set out in the legislation”.
Norfolk Constabulary’s belief that Ms Coffey’s hearing loss would render her unable to perform front-line police officer duties was a perception that it would have an effect on her ability to carry out normal day-to-day activities.
Comment
This case serves as a reminder to employers to be wary of making judgements or assumptions about workers, for example thinking that someone who has problems with depression or anxiety might not be up to the challenge of a stressful job. People who are unsuccessful in applications for jobs and promotions and might be unable to say with confidence that they are currently disabled, should still not suffer a detriment or less favourable treatment because an employer or prospective employer perceives that they are.
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