In Chief Constable of Norfolk v Coffey the Employment Appeal Tribunal has upheld a claim for direct disability discrimination based on perceived disability (rather than actual disability). This is the first time this point of law has been directly considered under the Equality Act 2010. This case also considers the law on progressive conditions.
Facts
The Claimant, Mrs Lisa Coffey, worked for Wiltshire Constabulary. In 2011 she applied for a promotion to police constable. This involved taking a medical examination where it was revealed that her hearing was just below the acceptable standard specified in the National Recruitment Standards guidance (‘the Guidance’). The Guidance set out that whilst such individuals are “unlikely to be suitable”, a practical functionality test must be carried out. Mrs Coffey successfully passed the practical functionality test and served as a police constable from 2011 to 2013 with no adjustments required.
In 2013, Mrs Coffey submitted an application to be transferred to the Norfolk Constabulary. Mrs Coffey disclosed her hearing loss and following the medical examination the medical expert advised that a practical functionality test was carried out.
The Chief Constable of Norfolk (‘the Chief Constable’) acknowledged that Mrs Coffey had fulfilled the role of police constable successfully at Wiltshire Constabulary but was unwilling to transfer the ‘risk’ of her long term management to Norfolk Constabulary. The Chief Constable was concerned about her continued ability to perform the role in the event her hearing deteriorated further; particularly as Mrs Coffey’s hearing loss was already just below the acceptable standard set out in the Guidance. As a result, the Chief Constable rejected Mrs Coffey’s application. A practical functionality test was not carried out despite both the Guidance and the medical expert from the medical examination advising it was done.
Mrs Coffey brought a claim for direct disability discrimination on the basis that, although she was not disabled, the Chief Constable had perceived that she was. The Chief Constable explained that the reason for rejecting Mrs Coffey’s application was that the police force operates under significant cost and resourcing pressures and therefore could not justify appointing someone who might not be fully operational.
Decision
At first instance the Employment Tribunal (‘ET’) held that the Chief Constable had perceived an actual or potential disability which would have necessitated adjustments being made to her role at some point. The ET found that the decision to reject her for the role amounted to direct disability discrimination.
The Norfolk Constabulary appealed the decision in the EAT. They argued that the Chief Constable knew that Mrs Coffey was not currently disabled and was only concerned that she might become so in the future. They argued that the Chief Constable did not perceive that Mrs Coffey was disabled within the specific Equality Act 2010 definition; “A person (P) has a disability if P has a physical or mental impairment, and the impairment has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities".
The EAT rejected that appeal. Although it is correct that in order to succeed in a direct disability discrimination case, the discriminator would have to be shown to have perceived that the claimant had an impairment with the features set out in the Equality Act 2010, this includes considering the features in the Equality Act on ‘progressive conditions’.
A person will be deemed to be disabled under the Equality Act 2010 if they suffer from a progressive condition and can show that “as a result of the condition they have an impairment which has or had some effect on their day-to-day activities”, but is “likely to result in an impairment having a substantial adverse effect.”
The EAT held that the Chief Constable perceived that Mrs Coffey’s condition could well progress to the extent that she would need to be placed on restricted duties. Therefore, the Chief Constable did perceive Mrs Coffey as disabled in terms of her having a ‘progressive condition’.
The EAT held that the Chief Constable’s decision amounted to direct disability discrimination. The EAT concluded that a hypothetical compactor, whose condition was not perceived to deteriorate with time, would not have been treated in the same way, and in all likelihood, such an individual would have been offered the job of police constable with the Norfolk Constabulary.
Comment
The Equality Act 2010 does allow not only discrimination claims by people who have a protected characteristic, but also people who do not, but who are perceived as having a protected characteristic. This case is the first of its kind to explore the issue of perceived disability discrimination under the Equality Act 2010. It confirms that claims based on a perception of disability are permissible. Further, it confirms that in order to succeed in such a claim, it would have to be shown that the perception was that the claimant had an impairment that fell within the Equality Act 2010 definition (including the progressive conditions features). Finally, it confirms that perceived disability discrimination can amount to direct disability discrimination.
It will be interesting to see if this case is appealed. The combination of discrimination based on perception and the law on progressive conditions does give cause for concern for employers who are dealing with employees with health conditions which do not amount to a disability and may never actually do so, but where there is a perception that they might.
Frances Rollin