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It is now common, in scenarios where employers and employees come into conflict about the impact of some incapacity which the employee may have, for the employee to claim that they suffer from a condition which qualifies as a disability under the Equality Act 2010 (the Act), and that their employer has taken or failed to take some action which results in disadvantage to them because of this disability. Employers may, however, counter with potential arguments about whether the individual was in fact disabled in law on the basis that unless the employee meets the legal definition of “disability” they can have no valid claim.

As a reminder, section 6 of the Equality Act (the Act) provides that a person has a disability if they have a mental or physical impairment which has a substantial and long term adverse effect on a person’s ability to carry out normal day to day activities. However, the Act also provides that an employee will be deemed to have an impairment with a substantial adverse effect if they suffer from a “progressive condition” which has some effect on a person’s abilities, and the condition is “likely” to result in the impairment having a substantial adverse effect in the future.

The case decided earlier this month of Chief Constable of Norfolk v Lisa Coffey is unusual because it involved an employee, Ms Coffey, expressly arguing that she did not have a disability, but that a prospective employer had discriminated against her because they perceived her to be disabled. Crucially the Act protects not just those who have a protected characteristic such as disability, but also those who are treated less favourably because they are thought to have a protected characteristic. It is clear that perception discrimination applies in relation to direct discrimination where the complaint is that someone is treated less favourably because of disability but it may not apply in relation to other forms of disability discrimination such as a claim of discrimination arising from disability under section 15 of the Act because that section refers to discrimination against a “disabled person”.

The Norfolk case is the first case of ‘perception discrimination’ to come before the (English) Court of Appeal and is an interesting judgement for employers as it once again highlights the importance of seeking and following medical advice when dealing with disabled or potentially disabled employees and job applicants, rather than relying on individual manager’s own perceptions of a condition, which may be inaccurate and expose an employer to risk of discrimination claims.

In the Norfolk case, Ms Coffey was a front-line police officer with the Wiltshire Constabulary. Although she suffered from bilateral mild sensori-neural hearing loss with tinnitus, which fell just below the national medical recruitment standards for police recruitment, her employer had followed the national guidance and carried out a practical test of hearing, which confirmed that she was fit to carry out front-line duties with no adjustments. After working in Wiltshire for a number of years, Ms Coffey wished to move to Norfolk and applied for a transfer, which was accepted subject to a pre-employment medical assessment. Although the medical adviser noted that her hearing was “just outside the standards for recruitment strictly speaking”, it was noted that she was currently working in an operational role and therefore an “at-work test” should be carried out to determine her ability to cope in the operational environment. A follow-up assessment with a different medical adviser confirmed that there had been no deterioration in Ms Coffey’s hearing since she joined Wiltshire Constabulary, and Ms Coffey’s own ENT specialist confirmed that her hearing levels were stable.

Despite this medical evidence, the Chief Inspector declined Ms Coffey’s transfer application because of her hearing. The Chief Inspector acknowledged that Ms Coffey was currently working without adjustment in Wiltshire, but commented that the “risk” of her employment would transfer to Norfolk and she could not sign off on this. During her evidence at the Employment Tribunal, the Chief Inspector noted that her decision had been motivated by concerns about the number of operational staff in the constabulary who were on restricted duties and not operationally deployable, and that she wished to avoid adding a further officer to this number.

The Employment Tribunal found that the Norfolk constabulary had directly discriminated against Ms Coffey by treating her less favourably than they treated other applicants because they perceived her to be disabled. This decision was upheld by the Employment Appeal Tribunal, and the Norfolk constabulary appealed to the Court of Appeal.

The appeal was founded on three arguments. Firstly, the constabulary argued that the Chief Inspector who made the decision had not perceived Ms Coffey to have a disability within the meaning of the act. The Equality Act 2010 defines disability as a physical or mental impairment which has a substantial and long-term adverse effect on the person’s ability to carry out normal day-to-day activities. The constabulary argued that the Chief Inspector did not believe that Ms Coffey’s condition impacted her normal day-to-day activities, but only that it would have an impact on her duties as a front-line police officer, which were so specialised as to be different to normal participation in professional life, something which in case law is generally regarded as forming part of normal day-to-day activities. The Court of Appeal rejected this argument after some consideration. Although there were aspects of the role of an operational police officer which fall outwith normal day-to-day activities, there was no evidence that front-line police officers required particularly acute hearing.

The Court of Appeal also rejected the constabulary’s second argument that the Chief Inspector did not believe, at the date that she made the decision, that Ms Coffey was unable to carry out front line duties. It was clear that the focus of the Chief Inspector’s decision was what might happen in the future, and that she regarded the Claimant as having a progressive condition within the meaning of the Act. Although she acknowledged that that Ms Coffey had been an operational officer with Wiltshire constabulary, the Chief Inspector clearly stated that she regarded a transfer would entail some “risk” for the Norfolk constabulary in relation to Ms Coffey’s condition, and that she believed this condition would get worse to the point that Ms Coffey would be on restricted duties in the future. This formed the basis of the Chief Inspector’s decision to reject the application.

Finally, the Court of Appeal considered the Norfolk constabulary’s argument that direct discrimination was the wrong claim for Ms Coffey to be making. It argued that direct discrimination required the Chief Inspector to have consciously or unconsciously made the decision in question not to recruit Ms Coffey because she considered her to be disabled, and that this was not the case – the reason had been because Ms Coffey’s hearing fell below the prescribed standard, which was something arising from her perceived disability (a section 15 claim). On the facts of the case, the Court of Appeal held that direct discrimination had been established because the Chief Inspector had made decisions based on a stereotypical assumption that the perceived disability would make Ms Coffey unfit for frontline duties. It stated that “an employer’s concern about the ability of a disabled claimant to do the job may constitute direct discrimination if it is significantly influenced by a stereotypical assumption about the effects of the disability” and noted that the Chief Inspector had ignored home office recruitment guidance and medical recommendations to carry out at-work tests, and instead relied on her own assumptions to make the decision. The constabulary’s appeal was therefore dismissed.

Comment

This case is unusual – as noted above, it is the first appellate level decision on perception discrimination – and it serves as a warning to employers that even where an individual is not actually disabled, assumptions made by members of staff who are taking decisions regarding such individuals can open the employer up to risks of claims of disability discrimination. It is important in all cases where medical conditions may impact an individual’s work, even where the condition may not amount to a disability under the Equality Act 2010, to consider whether medical evidence should be obtained before decisions are taken, and to ensure that stereotypical opinions and assumptions do not override objective medical evidence.

If you have any queries regarding disability discrimination, perception discrimination or anything else in this blog please do not hesitate to contact a member of our Employment Team.

Annika Neukirch, Senior Solicitor

Chambers Leading Firm 2019

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