Can you discriminate against someone because they have a progressive condition which could amount to a future disability?
This was considered by the Court of Appeal in the case of Chief Constable of Norfolk v Coffey .
Mrs Coffey worked for Wiltshire Constabulary as a police constable. Prior to her appointment, a medical revealed that she suffered from some hearing loss. A practical functionality test was undertaken which Mrs Coffey passed, enabling her to work as a constable, without any adjustments.
Mrs Coffey applied to transfer to the Norfolk Constabulary; she disclosed her hearing loss, provided a copy of the report from the functionality test and advised that no adjustments to her role had been necessary.
Mrs Coffey underwent medical tests; and an ENT specialist confirmed that Mrs Coffey’s hearing levels were stable. Notwithstanding this, Mrs Coffey’s application was rejected on the basis that she did not meet the national standards on hearing.
Mrs Coffey issued tribunal proceedings, arguing that she was discriminated against because she was perceived to have a disability and that the decision to reject her application was direct disability discrimination.
The questions for the Courts:
- Whether Mrs Coffey could bring a claim that the refusal of her application for transfer was because of a perceived disability; and
- Whether a future disability could deem Mrs Coffey disabled at the time of the earlier decision.
The Employment Tribunal held that the employer had perceived Mrs Coffey to have an actual or a potential disability which could result in Norfolk Constabulary having to make adjustments to her role, either now or in the future, and that this amounted to direct discrimination.
Norfolk Constabulary appealed.
The EAT dismissed the appeal.
The Court of Appeal
The Court of Appeal held that Mrs Coffey’s hearing led to a perception that she already or would at some point in the future be unable to perform the role she was applying for and which had a substantial impact on normal day to day activities.
The court of appeal held that if the employer believed that Mrs Coffey’s impairment might at some time in the future have the result that she would be unable to perform the role of a front-line officer, that would constitute a finding of a substantial adverse impact on her ability to carry out day-to-day activities and thus of (future) disability.
The appeal was therefore dismissed.
This is a significant decision, and is the first case to directly consider a case of perceived disability discrimination, which the Court of Appeal has confirmed are permissible. Employers should note that an individual does not have to be disabled to bring a claim for direct disability discrimination, and can bring a claim because of a perceived disability. This is a cause for concern for employers particularly those employers that are managing employees that have health conditions, which do not amount to a disability, and may not amount to a disability but there is a perception that it might. It is important that all managers are trained on equal opportunities and there are robust equal opportunities polices in place.
If you have any questions or would like advice on managing equal opportunities in the workplace please contact Sejal Raja on email@example.com
This briefing is for guidance purposes only. RadcliffesLeBrasseur accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.