Perceived disability
Thursday 4th July 2019
The CA has upheld the ET’s decision in the Chief Constable of Norfolk v Coffey finding that a police officer suffered direct discrimination when she was denied a transfer as a result of a perceived disability.
In 2011, Mrs Coffey applied to become a police constable with the Wiltshire Constabulary. A medical highlighted some hearing loss accompanied by tinnitus, concluding that her hearing fell just below the standard required. Mrs Coffey passed a practical functionality test and she served as a police constable on the front-line with no difficulties.
In 2013, she requested a transfer and underwent a further medical, which again showed some hearing loss. A recommendation that she undergo an “at work” test to assess her operational effectiveness was ignored. Further medical advice confirmed that her condition was stable, that there had been no deterioration and that she would pass a practical test. However, the transfer was refused due to concerns about the future risk of increasing the pool of officers on restricted duties.
The ET and the EAT found that Mrs Coffey had suffered direct discrimination. Norfolk Constabulary challenged the EAT’s conclusion that the ACI perceived Mrs Coffey to have a disability. NC argued that it was not possible to show that the ACI believed that all the elements of “disability” were present because the requirements of a front-line officer involved specialised activities not within the definition of “normal day to day activities”. The CA disagreed, holding that activities undertaken by a front-line police officer for which good hearing is necessary, did not require unusually acute hearing.
While the CA accepted that the ACI did not believe Mrs Coffey had an actual disability, the ET’s finding was that of a perception of a potential disability. The ACI believed that Mrs Coffey’s condition was progressive, and any deterioration would have a serious adverse impact on her ability to perform normal day to day activities and in the future might result in restricted duties.
NC also argued that the requirements relating to progressive conditions, required at least “some” effect on normal day to day activities. While the ET did not expressly find that there had been any such impact, given the medical evidence before it, the CA held that it should be understood as having done so. Again, while not expressly stated, the likelihood of deterioration had also clearly influenced the ACI’s decision. Therefore, the ET had been entitled to find that at the time of the transfer decision, the ACI perceived Mrs Coffey to be suffering from a progressive condition.
The CA confirmed that in direct discrimination cases the phrase “because of a protected characteristic” is wide enough to cover situations where an individual is perceived to have such a characteristic, whether or not they actually do.
However, NC also argued that this was not direct discrimination case. The ACI refused the transfer request not because of her disability but because of something arising in consequence of it, failure to meet the required standards. The CA acknowledged that cases in which an employee suffers a detriment because they are, or are perceived to be, unable to do the work as a result of a disability, would normally be pleaded as discrimination arising from disability. However, the ACI’s decision was influenced by her stereotypical assumptions about the effects of Mrs Coffey’s condition and therefore fell within the ambit of direct discrimination.
The CA also agreed with the EAT’s comparator approach, confirming that a genuine difference in abilities will be a material difference when carrying out a comparison, but a flawed belief in a lack of ability was not. The ET had been entitled to find that the transfer request would have been approved for another individual with the same abilities, but who did not have a condition which the employer believed to be progressive.
All information in this update is intended for general guidance only and is not intended to be comprehensive, or to provide legal advice.