Disability Discrimination by Perception

Thursday 4th January 2018

In Chief Constable of Norfolk v Coffey the Employment Appeal Tribunal (EAT) has confirmed that it is a form of direct disability discrimination to reject a job applicant because of a perception that a medical condition they suffer from may become a disability in the future.

Mrs Coffey had been a staff member of Wiltshire Constabulary since 2009.  In 2011 she applied to become a Police Constable, and as part of the process underwent a medical at which it was discovered that her hearing fell below the Home Office standard required for police recruitment.  Despite this finding, Wiltshire Constabulary arranged for Mrs Coffey to undergo a functionality test, which she passed.  As a result, Mrs Coffey was allowed to take up the position of Police Constable, a role she fulfilled without any undue problems.

In 2013 Mrs Coffey applied to transfer to Norfolk Constabulary.  As part of this process she again underwent a medical, and again her hearing was found to be below the standard required for police recruitment.   However, on this occasion Norfolk Constabulary rejected her application to transfer on the basis that they considered she may have to be put on restricted duties in the future due to her hearing.  Mrs Coffey brought a claim for direct disability discrimination.

The Employment Tribunal found that Mrs Coffey had been subjected to direct discrimination, on the basis that Norfolk Constabulary refused her request to transfer because it perceived her to be potentially disabled due to a degenerative hearing condition.  On appeal the EAT upheld the Employment Tribunal’s decision, finding that even though Mrs Coffey’s hearing problem did not render her disabled and was not likely to do so in the future, the fact that Norfolk Constabulary had acted on a perception that Mrs Coffey may become disabled in the future meant that direct disability discrimination had occurred.

Comment:      This case shows that employers can be held to have directly discriminated on the basis of disability, not only where they perceive a disability to be present, but where they anticipate a disability in the future.  Whether their perception is correct or not is irrelevant.  As well as taking note of this wide definition of what constitutes direct discrimination, employers should ensure they comply with their duty to make reasonable adjustments to prevent disabled applicants being at a substantial disadvantage in the recruitment process.