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Discrimination based on perceived disability is unlawful

29 December 2017

The Employment Appeal Tribunal (“EAT”) has confirmed that it is unlawful to discriminate against an employee because of a perceived disability, even where that employee is not actually disabled under the relevant legal test.

Background

Disability discrimination law usually only protects a person who is actually disabled.  The legal test for disability requires the impairment to be long-term (either lasting 12 months or more or a recurring condition), and to have a substantial effect on the person’s ability to carry out normal day-to-day activities.  This means that people with short-term or less serious conditions are not regarded as “disabled” for the purposes of discrimination law.

So what happens if an employer wrongly thinks that a person is disabled and discriminates against them on that basis – does that person still have a discrimination claim?  Discrimination based on incorrect perceptions is well established for other protected characteristics.  It is most relevant for hidden characteristics which are not immediately obvious, such as sexual orientation.  If an employer assumes that someone is gay, and treats him/her badly because of this, it doesn’t matter whether he/she is gay or not.  That person has been treated differently because of a perception about sexual orientation, and that is unlawful direct discrimination (for a more detailed discussion, see our Inbrief on sexual orientation discrimination here).

This EAT decision considers whether the same approach applies to direct disability discrimination.

Facts of the case

Mrs Coffey was a police constable.  She had some hearing loss, which was marginally outside the range usually set for recruitment, but had passed a practical functionality test and so was allowed to join the police force.  In 2013 she applied to transfer to Norfolk Constabulary.  She attended a health assessment, which found that her hearing was just outside the usual standards for recruitment.  The medical advisor noted that she had been able to undertake an operational policing role, and recommended that she should have an “at work” test.  Instead, Norfolk Constabulary declined her request to transfer.  This was on the basis that her hearing was below the acceptable and recognised standard, and they did not want to risk increasing the number of police officers on restricted duties.

Mrs Coffey’s hearing loss did not meet the legal test of a disability, as it did not have a substantial adverse effect on her ability to carry out normal day-to-day activities.  She brought a direct disability discrimination claim on the basis that she had been perceived to have a disability in the form of a progressive condition, which was shown by Norfolk Constabulary’s concern that she would end up on restricted duties.  This case succeeded at the Employment Tribunal (“ET”).

The EAT’s decision

The EAT agreed with the ET’s decision, and found that it was possible for Mrs Coffey to bring her claim on this basis.

On the issue of whether Norfolk Constabulary perceived Mrs Coffey to be disabled, the EAT confirmed that a perception of disability was sufficient for a direct discrimination claim.  In this case, the officer who decided to reject Mrs Coffey’s transfer request did not believe she was disabled at that time.  The officer did, however, think that Mrs Coffey might have to be moved onto restricted duties at a later date.  This showed a perception that Mrs Coffey had a progressive condition which was likely to get worse in the future, even though this was not actually the case.  People with progressive conditions are treated as disabled under the law, meaning that the officer had incorrectly perceived that Ms Coffey was disabled.

The EAT then looked at whether this was direct discrimination, and found that it was.  They compared Mrs Coffey’s treatment with that of someone with the same hearing abilities, who was not perceived as having a progressive condition.  This comparator would not have been treated in the same way.  It was Norfolk Constabulary’s belief that Mrs Coffey’s hearing would deteriorate which led them to reject her transfer request.  Mrs Coffey had been treated less favourably because of the perception that she was disabled, and so she had been directly discriminated against.

Implications

In some ways this decision is unsurprising, as we are already familiar with discrimination based on perception of other protected characteristics, such as race, religion or sexual orientation.  This case confirms that disability discrimination works in the same way.

The complication here is that disability is different from other characteristics, as there is a specific legal definition of what counts as a “disability”.  In this case, the officer who made the decision did perceive something about Mrs Coffey which met this legal definition – namely that she had a progressive condition.  But, what would happen if the decision maker wrongly perceived that someone had a health condition which did not meet this definition?  Or what if the decision maker wrongly thought that a short-term condition such as a broken leg did meet the definition of disability, and treated someone badly because of this?

The EAT says that the question is whether the decision maker “perceived [Mrs Coffey] to have an impairment with the features set out in the legislation.  In other words, the perception must be of a health condition which meets the legal test of disability.  This was relatively easy to show in Ms Coffery’s case, because she was thought to have a progressive condition.  In other cases, it may be more difficult to show whether the decision maker perceived something which was long-term or serious enough to meet this legal test.  This is likely be particularly problematic in cases involving a mental impairment, where a general perception that someone is “depressed” or “anxious” may need to be examined in detail.

Leaving aside these more complex points, this case does make it clear that ignorance about disability can get an employer into trouble.  Even where it is incorrect, an assumption or perception about a health condition can be direct disability discrimination.

 

Chief Constable of Norfolk v Coffeyjudgment available here

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