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          Disability discrimination: Court of Appeal gives guidance on perceived disability discrimination

          In the case of Chief Constable of Norfolk v Coffey the Court of Appeal has upheld the Employment Appeal Tribunal's ("EAT") decision that a police officer with marginal hearing loss was directly discriminated against because of a perceived disability.

          Date: 26/06/2019

          Background

          Ms Coffey initially joined the police force in 1993. Following a career break and after spending some time as a staff member, Ms Coffey joined Wiltshire Constabulary in 2011 as a police constable.  Ms Coffey underwent a medical assessment and was found to suffer from bilateral mild sensori-neural hearing loss with tinnitus.  Although Ms Coffey's hearing was marginally outside the range set out by the Home Office for police recruitment, Ms Coffey passed a practical functionality test and worked as a constable with front-line duties.  In 2013, Ms Coffey wished to transfer to the Norfolk area. In line with standard practice for this role, Ms Coffey attended a pre-employment health assessment whereby the medical adviser noted that her hearing was "just outside the standard for recruitment, strictly speaking". The adviser recommended an "at-work test". This recommendation was not followed by the Norfolk Constabulary and instead the transfer was rejected. The reasons for rejecting the transfer were that the hearing test revealed Ms Coffey was now below the acceptable standard for recruitment and that, given the budgetary pressure the police force is under, it would not be appropriate to recruit more officers who may end up on restricted duties.  Ms Coffey brought a direct disability discrimination claim.

           

          Employment Tribunal

          By the time of the Employment Tribunal, Ms Coffey did not assert that she was disabled under the Equality Act 2010. It was accepted that her hearing loss did not have an adverse effect on her ability to carry out day-to-day activities. Instead, Ms Coffey's claim centred around less favourable treatment because of a perceived disability.  Ms Coffey argued that her hearing loss was a progressive condition which could lead to her being classed as disabled under the Equality Act 2010. Ms Coffey was successful at the Employment Tribunal as the treatment was found to be because of a perceived, actual or potential disability. The Chief Constable for Norfolk appealed to the EAT. 

           

          EAT

          The EAT dismissed the appeal and the Chief Constable of Norfolk submitted a further appeal to the Court of Appeal.

           

          The Court of Appeal

          The Court of Appeal dismissed the appeal.  Noting that this was the first case of perceived disability discrimination which had come before it, the Court made it clear that the definition of direct discrimination under section 13 of the Equality Act 2010 was wide enough to cover the concept of perceived discrimination. Despite strong arguments from Norfolk Constabulary that there was no belief that Ms Coffey had a disability, there was a finding by the Tribunal that there was a belief that at some time in the future Ms Coffey would be on restricted duties and unable to serve as a front-line officer. This finding made it clear that, at the time of the transfer request, Norfolk Constabulary believed Ms Coffey to have a progressive condition, which carries special protection under the Equality Act 2010. The Court of Appeal held that the concept of perceived disability includes both an employee perceived to have a disability now and an employees perceived to have a progressive condition which is likely to result in a disability in the future.

           

          Comment

          There has been much commentary on the concept of perceived disability discrimination and the difficulty presented when deciding whether the statutory definition of disability has been met. This decision provides useful guidance to employers and helps clarify the position of when perceived disability discrimination may occur.

          The Court focused heavily on the "stereotypical assumption" made by the Constabulary with regard to Ms Coffey's actual or future hearing loss. This decision serves as a useful reminder to employers that making career changing decisions based on stereotypical assumptions about an employee's medical condition can constitute direct disability discrimination, to which there is no defence. The Constabulary's argument that this claim should have been brought as a discrimination arising from disability under section 15 of the Equality Act 2010 was rejected. 

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