Police force discriminated on grounds of perceived disability

A police force discriminated against a police officer when it refused her transfer request because it considered that her hearing loss would deteriorate. 

Speedread

A police force discriminated against a police officer when it refused her transfer request because it considered that her hearing loss would deteriorate to such an extent that she would need to be placed on restricted duties in future.  Although the Acting Chief Constable did not perceive the police officer currently to be disabled (as she did not perceive that her impairment currently had a substantial adverse effect on her ability to carry out day to day activities), she did perceive her to be disabled in the sense that she had a progressive condition and she had treated her less favourably as a result.

Facts

In Chief Constable of Norfolk v Coffey, Ms Coffey applied to become a police officer with the Wiltshire Constabulary.  She suffered some hearing loss which placed her just outside the national standard for the police. The Constabulary arranged a practical functionality test which she passed and she was able to work without any adjustments.  A couple of years later, for personal reasons, she applied to transfer to the Norfolk Constabulary. She took the same hearing test which identified the same level of hearing loss as previously. She was not asked to take a practical functionality test and her application was rejected.    

Ms Coffey brought a direct disability discrimination claim.  She did not allege that she was disabled as her hearing loss did not have, and was not likely to have, a substantial adverse effect on her ability to carry out day to day activities. However, she alleged that the Acting Chief Inspector (ACI) perceived her to be disabled and rejected her application for that reason.  

The employment tribunal upheld Ms Coffey’s claim, ruling that the ACI perceived her to have an actual or potential disability which could lead to the Constabulary having to make adjustments to her role (either now or in the future) and it had rejected her application on this basis.   The Constabulary appealed to the Employment Appeal Tribunal.  

Decision

The EAT dismissed the appeal.  The Constabulary argued that it was not enough that the ACI perceived that Ms Coffey might become disabled in future.  She had to perceive that she met the statutory definition of disability now (i.e. that Ms Coffey has an impairment that has a substantial and long-term adverse effect on her ability to carry out day to day activities).   

The EAT disagreed.  A person who does not currently meet the statutory definition of disability (because their condition does not have a substantial adverse effect on their ability to carry out day to day activities) is deemed to be disabled if they suffer from a progressive condition i.e. if they have an impairment which has some effect on their ability to carry out day to day activities and which is likely to progress so that it has a substantial adverse effect in future.  In the EAT’s view, the ACI clearly perceived that Ms Coffey’s condition could progress to such an extent that she would need to be placed on restricted duties.  She therefore perceived Ms Coffey to be disabled in the sense that she suffered from a progressive condition.

The EAT went on to find that a person with the same abilities as Ms Coffey but who was not perceived to have a progressive condition would not have been rejected. The ACI rejected her transfer request because she believed her hearing would deteriorate.  Ms Coffey had therefore been treated less favourably because she was perceived to be disabled. 

Implications

If someone is treated less favourably because they are perceived to have a protected characteristic, they can bring a direct discrimination claim.  An obvious example is where someone is treated less favourably because they are perceived to be gay.  This case illustrates how this works in the context of disability. The EAT said that the question of whether a person perceives a person to be disabled does not depend on their knowledge of disability law (and whether they consider that the person meets the statutory definition of disability) but on whether they perceive the person to have an impairment with the features set out in the legislation.  

Employers should avoid stereotypical assumptions about how a condition might deteriorate and instead make decisions based on a person’s current abilities.  

The Constabulary is seeking leave to appeal to the Court of Appeal.