The Court of Appeal in Chief Constable of Norfolk v Coffey has held than an employer directly discriminated against an employee by refusing her a transfer on the basis of the employer’s stereotypical assumptions about the employee’s perceived disability. This case is the first to confirm that claims based on a perception of disability are permissible.
The employee concerned was a
police officer who suffered from some hearing loss. Upon application to the
Police in 2011, she was found to be just below the hearing standard set for Police
recruitment. However, she was individually assessed in accordance with Home
Office guidance as functional and able to perform her role without any
adjustments. In 2013, the employee applied for a transfer from Wiltshire to
Norfolk Constabulary. Medical information was sought and confirmed that the
employee would pass a practical test and that her hearing levels were stable.
Despite the medical advice, the
employee’s transfer application was refused by the Acting Chief Inspector of
Norfolk because she did not meet the Police standard on hearing. It was found
in the Employment Tribunal that the decision-maker refused the transfer because
of a perception that the employee’s hearing could worsen and she may have to be
placed on restricted duties and therefore not be fully operational. The ACI
stated in evidence that she felt that appointing the employee might result in
significant cost and resourcing pressures which were not justifiable, despite
noting that she did not believe that the employee had an actual disability in
accordance with the Equality Act 2010 definition.
The Tribunal held (and was upheld
on appeal to the EAT) that the decision-maker had made her decision upon a
perception that the employee had an actual or potential disability in the form
of a progressive condition, which could require the Police to have to make
adjustments to her role. This finding was upheld by the Court of Appeal because
of the decision-maker’s focus on what might be the effect of the employee’s
hearing loss in the future and so the ACI had perceived the Claimant as having
a “potential disability”.
In the Court of Appeal, the
employer sought to argue that the refusal of the employee’s transfer was not
because of her (perceived) disability itself (the hearing loss), but because of
‘something arising in consequence’ of the impairment (the failure to meet the
requisite hearing standard). This would therefore re-frame the claim as
discrimination arising from disability, rather than direct discrimination. The
important distinction between these claims is that an employer can justify
discrimination arising from disability if it is a proportionate means of
achieving a legitimate aim. However, direct discrimination can never be
The Court of Appeal upheld the
finding of direct disability discrimination as it was accepted that an
employer’s concern about the ability of a disabled claimant to do the job could
be direct discrimination if it is significantly influenced by a stereotypical
assumption about the effects of the disability.
This case highlights that employers must be careful not to make assumptions about the current and future effects of any employee’s medical condition. Decisions based on such assumptions could be found to be directly discriminatory even in absence of an actual disability. Employers should always seek medical advice and then make an informed decision in light of that advice, rather than solely relying on their own belief.
The contents of this newsletter are intended as guidance for readers. It can be no substitute for specific advice. Consequently we cannot accept responsibility for this information, errors or matters affected by subsequent changes in the law, or the content of any website referred to in this newsletter. © Mundays LLP