Don’t Be Naughty with Notice
12th September, 2019
Andrew Knorpel looks at the potential criminal liability which arises when an employer and employee “agree” that either notice was given or employment was terminated on a date which differs…
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 justified.
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
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