In the recent case of Chief Constable of Norfolk v Coffey the Court of Appeal has upheld a claim for direct discrimination based on perceived disability (rather than actual disability). This case is significant because it is the first case to address in detail perceived disability discrimination under the Equality Act 2010.
The Claimant, Mrs Lisa Coffey, worked for Wiltshire Constabulary. In 2011 she had a medical examination where it was revealed that her hearing was just below the acceptable standard specified in the national guidance. However, she successfully passed a practical functionality test and served as a police constable from 2011 to 2013 with no adjustments required.
In 2013, Mrs Coffey applied to transfer to the Norfolk Constabulary. Mrs Coffey disclosed her hearing loss and following a medical examination, the medical expert advised that a practical functionality test was carried out.
The Chief Inspector of Norfolk (the Chief Inspector) was unwilling to transfer the ‘risk’ of her long-term management to Norfolk Constabulary. The Chief Inspector was concerned about her continued ability to perform the role in the event her hearing deteriorated further. As a result, the Chief Inspector rejected Mrs Coffey’s application. A practical functionality test was not carried out despite both internal guidance and the medical expert advising that it should be done.
Mrs Coffey brought a claim for direct disability discrimination on the basis that, although she was not disabled, the Chief Inspector had perceived that she was.
Mrs Coffey’s claim was successful in the Employment Tribunal (ET) and upheld on appeal in the Employment Appeal Tribunal (EAT). You can find more details on the EAT decision in our update here.
Background: disability, progressive conditions and perception
A person will be disabled and therefore have a protected characteristic under the Equality Act 2010 if he or she has a physical or mental impairment, and the impairment has a substantial and long-term adverse effect on his or her ability to carry out normal day-to-day activities.
This definition is supplemented in the Equality Act 2010 by the concept of ‘progressive conditions’. A person will be deemed to be disabled if he or she suffers from a progressive condition which has (or had) some effect on their day-to-day activities, but which is likely to result in a substantial adverse effect on their day-to-day activities in the future.
Direct discrimination can occur if the alleged discriminator thinks that the claimant is disabled, even if in fact they are not disabled (perceived discrimination). In order for perceived disability discrimination to be established, the alleged discriminator must believe that all the elements of ‘disability’ under the Equality Act 2010 are present.
The Court of Appeal (CA) dismissed the Norfolk Constabulary’s appeal from the EAT.
The CA held that the evidence showed that the Chief Inspector believed Mrs Coffey’s impairment might at some point in the future have the result that she would be unable to perform the role of a front-line police officer. The CA held that this constituted a belief that she would be unable to carry out normal day-to-day activities, as the varied activities of a front-line police officer for which good hearing is relevant are ‘normal day-to-day activities’.
The Court of Appeal held that the Chief Inspector believed Mrs Coffey did have a progressive condition within the meaning of the Equality Act 2010. The Chief Inspector believed that Mrs Coffey’s condition currently had some impact on her ability to carry out day-to-day activities. It was clear that the Chief Inspector also believed that a deterioration in Mrs Coffey’s hearing would have a substantial adverse effect on her ability to carry out day-to-day activities in the future, as the ET found that such a deterioration would mean that she would be unable to work as a front-line officer.
The Court of Appeal also held that the case was one of direct discrimination. The Chief Inspector had not followed Home Office guidance on assessing cases individually, nor had she followed a medical adviser’s recommendation for further testing for Mrs Coffey. The Court of Appeal concluded that it was therefore “plainly” open to the ET to find that the Chief Inspector had acted based on a stereotypical assumption that Mrs Coffey’s hearing loss would leave her unable to perform front-line duties.
This case is significant as the first case to address in detail perceived disability discrimination under the Equality Act 2010. Although not actually disabled, the claimant was able to win her case, as it was perceived that she had a progressive condition.
The CA emphasised that although this case succeeded as a direct discrimination case, it does not follow that such a claim can usually be brought where an employee suffers detriment because they are (or are perceived to be) unable to do the work required by their employer, or do it to a sufficient standard, as a result of disability. Such cases would typically have to be brought as a claim for ‘discrimination arising from disability’, which an employer can potentially objectively justify.
The reason that this case did amount to direct discrimination was that the decision to refuse the transfer was influenced by stereotypical assumptions about hearing loss. This case highlights the dangers of making assessments based on a stereotypical assumption of the effects of a perceived disability. Employers should therefore resist the temptation to ‘jump the gun’ when making decisions and ensure that they seek medical and other relevant advice where appropriate.