The Equality Act states that it is direct discrimination to treat someone less favourably than someone else because of a protected characteristic, such as disability. In Chief Constable of Norfolk v Coffey, the Employment Appeal Tribunal (EAT) held that it is also direct discrimination to treat someone less favourably because they are perceived to have a disability.
Basic facts
When applying to become a police constable with the Wiltshire Constabulary, Ms Coffey went through a medical examination at which it was found that she suffered from a level of hearing loss that was below the recommended medical standard. A Home Office Circular made clear that all candidates who did not meet the medical standard should be looked at individually and assessed in terms of ability based on the role, functions and activities of an operational constable. Wiltshire followed this guidance and arranged a practical functionality test which Ms Coffey passed. She worked as a police constable from 2011 onwards with no adverse effects.
When she applied for a transfer to Norfolk in 2013, she disclosed her hearing loss and enclosed the report from the functionality test. The force’s medical advisor recommended an “at-work” test which meant an assessment should be carried out of her effectiveness to work in an operational environment Norfolk rejected that recommendation and instead asked another medical advisor for clarification. This advisor confirmed that Ms Coffey’s hearing had not deteriorated since 2011 and she would pass a practical test. Likewise an ENT specialist confirmed her hearing levels were stable.
Despite these opinions, Norfolk refused her application on the basis that her hearing was below the medical standard. Ms Coffey brought a claim of direct disability discrimination on the basis that she had been treated less favourably because she was perceived to have a disability.
Relevant law
A disability is defined in the Equality Act 2010 as a physical or mental impairment which has or, in the case of a progressive condition, is likely to have a substantial and long-term adverse effect on a person’s ability to carry out normal day to day activities.
Section 13 of the Equality Act provides that direct discrimination occurs when a person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.
Tribunal decision
In its statement to the tribunal, the force made clear its concerns that as a "non-disabled permanently restricted officer", Ms Coffey’s appointment might put financial constraints on the pool of officers who were operationally deployable, thereby placing further pressure on those officers. It therefore made a decision not to recruit her because to do so knowingly would risk increasing the pool of restricted officers an outcome that “was not consistent with service delivery”.
The tribunal held that the Acting Chief Inspector perceived that Ms Coffey had a disability which would require adjustments in the future despite the position she held at Wiltshire. As such, Norfolk Constabulary had directly discriminated against her and recommended that her rejection be expunged from the employer’s record.
EAT decision
The EAT agreed. It held firstly that section 13 was sufficiently broad to encompass “perceived” discrimination of any protected characteristic, including disability. This included a situation where the worker did not have a disability but was perceived to have an impairment which could well have a substantial adverse effect on normal day to day activities in the future. Otherwise, an employer would be allowed to dismiss an employee with an impairment which they had wrongly perceived might affect their work in the future, in order to avoid the duty to make adjustments.
In this case, the tribunal found that it was clear from the statement submitted by Norfolk police that the reason for refusing Ms Coffey’s application was the perception that her condition could progress to the extent that she would have to be placed on restricted duties and so have a substantial adverse effect on her ability to carry out normal day to day activities. This risk was part of the reason why her request for a transfer was rejected; so despite their protestation to the contrary, the force did perceive Ms Coffey to be disabled.
In upholding her direct disability discrimination claim the EAT clarified that the appropriate comparator was a person who was not perceived to have a disability i.e. someone who did not have a condition that was likely to deteriorate and who had the same abilities as the claimant.