Employees are protected against less favourable treatment on the grounds that the perpetrator perceives they have a disability, even if they don’t have one. A recent case has looked at whether perceived disability discrimination protects employees when a recruiting officer believes their current health condition will become a disability in the future.
In The Chief Constable of Norfolk v Coffey, a staff member applied to become a chief constable in the Wiltshire Constabulary. A medical assessment was carried out which found the employee suffered from hearing loss with tinnitus. There was a non-decisive standard for hearing loss under the Medical Standards as part of the National Recruitment Standards. The accompanying guidance advised recruiters to consider a practical test where hearing loss was below standard in one ear, or borderline, and stated all candidates should be looked at individually. The Wiltshire Constabulary followed this guidance and carried out a practical test. The employee passed this and worked on front-line duty without any adverse effects from 2011.
In 2013, the employee applied for a transfer to the Norfolk Constabulary; disclosing her hearing loss but explaining no adjustments were needed to the role. In November 2013, she was informed she had been successful subject to a fitness and health assessment. A health assessment in December found the employee had significant hearing loss which did not meet the required standard, however as she did not have any problems in her current role, a practical test was recommended. Further advice was sought from another medical adviser who also concluded the hearing loss was below standard but the employee would pass a practical test. The Acting Chief Inspector (ACI) declined the transfer application because the employee’s hearing was below the medical standard. The ACI felt, if she did transfer, the risk of her ability to perform the role would become the responsibility of the Norfolk Constabulary.
The employee made a claim for disability discrimination on the basis of a perceived disability under s13 Equality Act 2010. At tribunal, the ACI’s evidence stated she had regarded the employee as a “non-disabled permanently restricted officer”. In her view, knowingly taking on officers who did not meet the medical standards would risk increasing the pool of restricted officers and increase restraints on the force in the future.
Due to the evidence, the tribunal found the ACI had perceived the employee had a potential disability which would lead to the force having to make future adjustments to her role; becoming a future liability. The only reason for rejection was failing to meet medical standards, therefore, the employee had been directly discriminated against on the grounds of a perceived disability.
On appeal, the Employment Appeal Tribunal (EAT) agreed with the tribunal.
What this means for employers:
- This case confirms discrimination laws will protect an individual who is treated less favourably because it is perceived they have an impairment which will have a substantial adverse effect in the future.
- This will protect employees who are dismissed in advance of their condition becoming a disability and ensures employers cannot avoid their duty to make adjustments in the future.
- The perceived condition will have to meet the legal definition of a disability in the future i.e. it must be perceived that the condition will have a substantial adverse effect on day-to-day activities in the future.