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Perceived disability discrimination

28th December 2017

We are frequently asked to give advice on disability discrimination in the workplace. Quite often we deal with concerns that potential employers have over the possibility that a prospective employee may have a medical condition which could impede their ability to work at some point in the future. A recent case in the Employment Appeals Tribunal (the EAT) has examined the law in this area. Essentially the case involved considering the question of whether or not it was direct disability discriminatory if a non-disabled job applicant is rejected because of a perception that a medical condition could develop into a disability in the future.

The case of Chief Constable of Norfolk v Coffey involved a serving police officer who applied for a transfer from the Wiltshire Police to the Norfolk Police. She had a degree of hearing loss. The level of hearing loss was marginally below the medical standard for recruitment to the police.

In 2011 Ms Coffey had attended a medical for the Wilshire Police, at which it was discovered that she suffer from mild bilateral sensori-neural hearing loss with tinnitus. The test proved that she was just below the normal medical standard required, but the Wiltshire Police arranged a separate functionality test which she passed. In 2013 she applied for a transfer to Norfolk Police. As usual, she attended a pre-employment health assessment. In that assessment it was noted that she her hearing was just outside the standards required for recruitment, but it was noted that she had carried out an operational role with the Wiltshire Police without any significant problems. The medical assessor recommended that she undergo a “work test”, but this was not carried out. Instead the Assistant Chief Inspector declined her request for the transfer on the basis that her hearing was below the recognised standard, and that it was not appropriate to step outside that standard given the risk of increasing the pool of officers on restricted duties due to the possible deterioration of her hearing.

Ms Coffey brought a claim in the Employment Tribunal claiming that the Norfolk Police had committed direct disability discrimination in refusing the transfer. It was not actually alleged that she was in fact disabled. Her case was that her hearing loss did not have, and was not likely to have a substantial adverse effect on her ability to carry out normal day to day activities (which is an essential element of the definition of disability under the Equality Act). Her argument was that she had been treated unfavourably because she was perceived to have a disability. The Employment Tribunal concluded that the only way to interpret the reasons for the refusal of the transfer was that the Assistant Chief Inspector had perceived that Ms Coffey had a potential or actual disability, and that since that perception was the reason for refusing the transfer the Employment Tribunal upheld the claim against Norfolk Police. The case was appealed to the EAT.   

In the EAT it was noted that although the Assistant Chief Inspector did not perceive Ms Coffey to actually be disabled at the time of the request for the transfer they still fell foul of the Equality Act, which provides protection to those that have progressive conditions, so that even if at the time in question the individual does not have a disability, but the condition will be likely to result in a substantial adverse effect in the future. The EAT noted that the risk of Ms Coffey having to be placed in the restricted duties pool indicated that the Assistant Chief Inspector perceived that Ms Coffey had a condition that could worsen. The EAT therefore concluded that the Norfolk Police had committed direct discrimination against Ms Coffey. It noted that the treatment would have been different for a candidate that had a condition that was not perceived to be likely to deteriorate so as to require restricted duties. The EAT noted that “There would be a gap in the protection offered by equality law if an employer, wrongly perceiving that an employee’s impairment might well progress to the point where it affected his work substantially, could dismiss him in advance to avoid any duty to make allowances or adjustments.” 

Sadly, for Norfolk Police, they could have avoided the case by the Assistant Chief Inspector following the advice given to rely on a practical assessment of Ms Coffey. This case illustrates the problems that employers can get into through their personal assumptions and perceptions of disability and the effect it may have on a person’s ability to carry out their work. So, the main lesson for employers to take from this is not to make assumptions on the abilities or future abilities of any employee or job applicant to carry out their duties. The next lesson is to actively consider the possibility of making adjustments that will be able to assist an employee (or job applicant) carry out the duties of their particular role      

We can help by providing you with appropriate policies to address these issues, and give advice on implementing them properly and appropriately, or give advice on particular situations as they arise. 

If you need any further advice on any matter raised in this article do not hesitate to contact us at Hallett Employment Law Services Ltd.

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