21 Jul 2019

Chief Constable of Norfolk v Coffey [2019] EWCA Civ 1061

Facts

Ms Coffey was a police constable with the Wiltshire Constabulary. She attended a medical as part of the recruitment process and was found to have mild hearing loss with tinnitus, which was just outside the range set by the Home Office for police recruitment. She passed a practical functionality test and went on to work on front line duties. There was no impact on her ability to do her job and she was not considered to be disabled. She then applied to transfer to the Norfolk Constabulary. She disclosed the hearing loss and the result of the test. A pre-employment health assessment recommended that she undergo an "at work" test but this did not take place. Her transfer request was rejected on the basis that her hearing was below the standard required and there was a risk that she could end up on restricted duties in future. Ms Coffey brought an employment tribunal claim for direct discrimination. She did not argue that she had a disability but that she was treated less favourably because she was perceived to have a disability, which could have an impact in future on her ability to do her job.

Decision 

The Court of Appeal held that the legislation was wide enough to cover a situation where an employer acts on the basis that an employee has an actual or potential disability. Ms Coffey therefore suffered direct discrimination and was awarded compensation.

Comment

This was the first case of perception discrimination to come before the Court of Appeal. It gives a strong warning to employers to avoid making assumptions about an individual's ability (or future ability) to carry out a role, and to seek medical advice where appropriate.

* with apologies to WS Gilbert