Perception is reality?

In the case of Chief Constable of Norfolk -v- Coffey (UKEAT/0260/16/BA), the Employment Appeal Tribunal has confirmed that an employer discriminated directly because of disability where it perceived that an employee's hearing loss may well become a disability in the future.

Facts

The Claimant was a serving police officer in the Wiltshire Constabulary. Before she was appointed to that role, she had undergone a medical as a result of which it was discovered that she suffered from a degree of hearing loss which was just outside the standards for recruitment. Following the Home Office's recruitment guidance, the Wiltshire Constabulary arranged a practical functionality test which the Claimant passed, and she was accepted and worked as a police constable on front-line duty with no adverse effects from 2011 onwards.

The Claimant wished to move to the Norfolk area and applied for a transfer to the Norfolk Constabulary. She disclosed that her hearing loss and enclosed the report from the functionality test. She said that no adjustments had been necessary because of this hearing loss. 

She successfully passed the interview stage, subject to a fitness and pre-employment health assessment. The medical assessments stated that her hearing loss was in both ears but had not deteriorated since 2011. Whilst she was "just outside the standards for recruitment strictly speaking," it was noted that she had undertaken an operational policing role with the Wiltshire Constabulary without any undue problems and recommended that a practical test be carried out.

ACI Hooper of Norfolk Constabulary decided not to accept this recommendation. Without any individual assessment, ACI Hooper declined the Claimant's application, stating this was because her hearing was below the recruitment standards. 

The Claimant brought claims for disability discrimination, alleging that she had been directly discriminated against on the basis of perceived disability. Interestingly, the Claimant's case was that she was not in fact disabled, whether at the time or because she had a progressive condition. Rather, she relied on perceived disability; that is, ACI Hooper perceived that she was likely to have become disabled over the course of time and this was the reason for turning down her transfer application. ACI Hooper's evidence was that she did not believe the Claimant to be disabled but she regarded the Claimant as, at least potentially, a "non-disabled permanently restricted officer". She was concerned not to increase the pool of restricted officers at a time when operationally deployable officers were already under pressure as a result of financial constraints and other factors.

The Tribunal upheld the Claimant's claim and recommended that her rejection be deleted from the Respondent's record. Norfolk Constabulary appealed to the EAT.

EAT decision

The EAT upheld the Employment Tribunal's decision. It made two key findings:

An employer can discriminate directly because of a perceived disability

The definition of disability is set out in the Equality Act 2010. This states that a person has a disability 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. Provision is also made to include progressive conditions, where the condition is likely to meet the definition of disability in the future.

The EAT held that ACI Hooper thought the Claimant's condition could well progress to the extent that she would have to be placed on restricted duties. If it were to progress to that extent, then her condition would amount to a disability which would in turn mean that ACI Hooper did perceive the Claimant to be disabled. The fact that ACI Hooper did not realise that the definition of disability included progressive conditions did not alter the fact that the legal test was met and she had perceived the Claimant to be disabled.

The EAT also upheld the Tribunal's decision that the treatment of the Claimant amounted to direct discrimination

The Equality Act defines direct discrimination as discriminating against someone if, because of a protected characteristic (in this case, disability), the employer treats an individual less favourably than they treat or would treat others. Crucially, the EAT confirmed that this does not require the Claimant to actually have a disability – only that they are treated less favourably because of disability. The provision is therefore sufficiently wide to cover a case where someone is treated less favourably because of a perceived disability.

They held that the Claimant would need to be compared with a hypothetical comparator who was a person not perceived to be disabled – that is, a person whose condition was not perceived as likely to deteriorate so that they would require restricted duties – and who had the same abilities to do the job which the Claimant had. The EAT upheld the Tribunal's conclusion, stating: 

"such a person would not have been treated as the Claimant was treated. The Claimant was able to perform the active policing role; she was performing it in Wiltshire; she had been accepted at the interview stage; her rejection followed when ACI Hooper ignored advice to rely on a practical assessment of the Claimant because, as the Employment Tribunal put it, she believed the Claimant would become a liability to the Force." 

Accordingly it upheld the Claimant's claim for direct discrimination.

Comment

Norfolk Constabulary went wrong here in ignoring medical advice to assess the Claimant's actual abilities to perform the job, and instead relying on an assumption that the condition might deteriorate in the future. Employers should avoid making assumptions about someone's abilities, and instead rely on a proper assessment of their actual abilities.

This case is important as it confirms that employers can directly discriminate against an employee even if they think that person is not currently disabled, but their condition may well mean that they become disabled and require reasonable adjustments to be made in the future. Rejecting someone's application, or dismissing them, to avoid a potential future need to make reasonable adjustments risks discriminating directly because of disability.