DWF logo

Search

DWF logo

            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. 

            Related people

            Charlotte Lloyd-Jones

            • Professional Support Lawyer

            Joanne Frew

            • Partner // Head of Employment (Manchester)

            We use cookies to give you the best user experience on our website. Please let us know if you accept our use of cookies.

            Learn More

            Your Privacy

            When you visit any web site, it may store or retrieve information on your browser, mostly in the form of cookies. We mainly use this information to ensure the site works as you expect it to, and to learn how we can improve the experience in the future. The information does not usually directly identify you, but it can give you a more personalised web experience.
            Because we respect your right to privacy, you can choose not to allow some types of cookies. Click on the different category headings to find out more and change permissions. However, blocking some types of cookies may prevent certain site functionality from working as expected

            Functional cookies

            (Required)

            These cookies let you use the website and are required for the website to function as expected.

            These cookies are required

            Tracking cookies

            Anonymous cookies that help us understand the performance of our website and how we can improve the website experience for our users. Some of these may be set by third parties we trust, such as Google Analytics.

            They may also be used to personalise your experience on our website by remembering your preferences and settings.

            Marketing cookies

            These cookies are used to improve and personalise your experience with our brands. We may use these cookies to show adverts for our products, or measure the performance of our adverts.