Police officer refused transfer wins discrimination claim based on perceived disability
A police officer who is not disabled has won a claim for direct disability discrimination. The police force refused her transfer application because it believed her hearing would deteriorate in the future. The Court of Appeal agreed with the employment tribunal that the police force perceived her to be disabled in the sense of having a progressive condition. The force had directly discriminated against her as it acted on the basis of stereotypical assumptions about her future ability to do the job.
Police officer suffers some hearing loss
Ms Coffey applied to become a police officer with the Wiltshire police force. A medical revealed she suffered some hearing loss which placed her outside the national standard for the police. She passed a practical hearing test and worked as a police constable without needing any adjustments.
Transfer application refused
Two years later she applied to transfer to the Norfolk force. A medical revealed the same level of hearing loss as previously. The medical adviser noted she was working as a police constable in Wiltshire without any undue problems. He recommended she take an “at work” test. Norfolk did not ask her to take the test. Instead, it sought further medical advice. This confirmed she was likely to pass the hearing test. She also saw a specialist who confirmed her hearing levels were stable.
The Acting Chief Inspector refused her transfer application as she did not meet the medical standards.
Police officers claims direct discrimination based on perceived disability
Ms Coffey claimed direct disability discrimination, arguing that the Acting Chief Inspector refused her application because she perceived her to have a disability.
The employment tribunal upheld her claim and the Employment Appeal Tribunal rejected the police force’s appeal. The Acting Chief Inspector perceived that Ms Coffey had a disability in the sense of a progressive condition. She perceived her to have an impairment which had an adverse effect on her ability to carry out normal day to day activities and which was likely to have a substantial adverse effect in the future. The decision to refuse Ms Coffey’s transfer application because she believed her hearing would deteriorate was direct disability discrimination.
Court of Appeal rejects police force’s appeal
The police force appealed but the Court of Appeal rejected the appeal.
The employment tribunal’s findings indicated the Acting Chief Inspector perceived Ms Coffey to be disabled in the sense that she had a progressive condition.
The police force also argued that the Acting Chief Inspector did not refuse Ms Coffey’s application because she was disabled or because it perceived her to be disabled. It refused her application because of her future inability to do the job. This was not therefore a claim of direct discrimination.
The Court of Appeal disagreed and ruled that Ms Coffey's direct disability discrimination succeeded. Normally, if a person is refused a job because they are unable to meet a performance standard due to disability, the claim should be framed as one of discrimination arising from disability. However, where, as here, the employer acted on the basis of stereotypical assumptions (that Ms Coffey’s hearing loss would render her incapable of performing front-line duties) the employment tribunal was entitled to find this amounted to direct discrimination.
Employees who are not disabled can claim direct disability discrimination if their employer perceives they are disabled. When looking at whether an employer perceives an employee as disabled, an employment tribunal can look at whether the employer perceived the employee to be disabled within the normal definition or in the sense of having a progressive condition.
Employers should avoid basing decisions about an employee’s ability to do the job on stereotypical assumptions. Instead, they should obtain medical advice on this question.
Chief Constable of Norfolk v Coffey
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