Guilty of an inaccurate assumption
We explore whether it is unlawful to discriminate against an employee because of a perceived disability.
In a recent hearing the Employment Appeal Tribunal (EAT) upheld a decision that a police officer, who was turned down for a transfer due to hearing loss, had suffered direct discrimination based on a perceived disability. Prior to this case, direct discrimination based on a perceived disability under the Equality Act 2010 had never been directly addressed.
The case concerned Ms Coffey, a police constable in Wiltshire, who suffered from minor hearing loss that placed her marginally outside national standards for hearing loss for the police. She was allowed to join the Wiltshire force as she passed a practical functionality test.
At the forefront of the matter was her application for a transfer to the Norfolk Constabulary. As part of the interview process she underwent hearing tests. The test results recorded her hearing at just outside the standards required. The medical advisor recommended she take an ‘at work’ test however the Constabulary dismissed this idea and rejected her transfer. This was based on concerns that she might end up on restricted duties should her hearing deteriorate.
Ms Coffey brought a claim for direct disability discrimination on the basis that she was perceived to have a disability in the form of a progressive condition (as her hearing loss did not meet the Equality Act test for a disability). The tribunal found in her favour and the case was appealed by the Constabulary.
On appeal the EAT used a hypothetical comparator of a candidate whose condition was not perceived as likely to deteriorate so as to require restricted duties. This comparator would not have been treated in the same fashion. Therefore Ms Coffey had been treated less favourably because of this perception and the EAT agreed with the tribunal’s decision.
This case illustrates that claims based on a perception of disability are permissible and helps clarify the test for perceived discrimination and what a claimant will have to establish in order to be successful.
Employers should make decisions based on abilities at that particular time and not make assumptions about disability and whether a condition will deteriorate in the future. In this particular case the error is exacerbated due to the Constabulary ignoring advice to undertake additional testing. Assumptions about individuals with potential disabilities are ill-advised, unfair and are likely to be found discriminatory.