Perceiving is believing

For the first time, the Court of Appeal has considered the application of perceived disability discrimination under the Equality Act 2010. So what is a perceived disability, and when could it arise?

Chief Constable of Norfolk v Coffey involved a service police officer in Wiltshire who applied for a transfer to the Norfolk Constabulary. In 2011, it was discovered that Ms Coffey suffers from bilateral mild sensori-neural hearing loss, and she disclosed that she had some upper range hearing loss in her application. She also disclosed the reports of a functionality test that the Wiltshire Constabulary had arranged for her; she had passed, and she had continued in her role as a police officer with no adverse effects. The medical assessments undertaken at the time of her application (in 2013) showed that there had been no deterioration in the Claimant’s hearing since 2011.

After passing an initial interview, her application for a transfer to Norfolk was rejected, because her hearing was “just outside the standards for recruitment”. Notwithstanding the evidence that Ms Coffey’s hearing did not impact her role as a police officer in Wiltshire, the Chief Constable of Norfolk felt that it would not be appropriate to step outside the recruitment standard, particularly where doing so risked increasing the pool of officers on restricted duties.

Ms Coffey successfully brought a claim for direct discrimination in the Employment Tribunal, which was upheld in EAT and has now been upheld in the Court of Appeal. Ms Coffey accepted that she did not have a disability, as her hearing did not impact her ability to carry out her day to day activities. However, she successfully argued that she had been discriminated against because of a perceived disability. The Chief Constable believed Ms Coffey had a progressive disability which would, in time, impact on her ability to carry out such activities (such that she would be placed on restricted duties), and had rejected her application on that basis.

The Court of Appeal has therefore confirmed, for the first time, that direct discrimination can arise on the basis of a perceived disability. S13 of the Equality Act, which deals with direct discrimination, applies where A treats B less favourably than A treats or would treat others because of a protected characteristic (whether or not B has that characteristic).

In many cases, it will not be open to employees to bring claims of direct discrimination because they are (or are perceived to be) unable to fulfil the duties involved in a particular job. Such claims will, more often than not, be brought under s15 of the Equality Act, as complaints of discrimination arising from a disability. Such claims can be defended by employers if they can show that the treatment is a proportionate means of achieving a legitimate aims. However, where employers make assumptions about the effects of a disability, this can give risks to risks of direct discrimination claims, which do not allow for a justification defence.

Employers must therefore take care to avoid making assumptions about disabilities (where actual, or perceived) and the impact they may have at the relevant time or in the future. They should instead rely on factual evidence available (eg from occupational health) at the time decisions are made.

Knowledge of disability

While we are on the topic of disability discrimination and occupational health… The EAT has recently found (in Q v L) that an employer is not deemed to have knowledge of an employee’s disability where the employee has disclosed that disability to occupational health, but has not consented to the employer receiving the full OH adviser’s report. In this case, the employer had only been allowed to receive the adviser’s statement about fitness to work, and not the details of the employee’s condition. 

Both these cases underline the importance of the role of occupational health in potential disability cases. In particular, Norfolk v Coffey highlights the difference between receiving factual information about an employee’s health, rather than simply forming an opinion based on assumptions, which could well be tainted by discrimination.

If you require further information about anything covered in this blog, please contact Emily Part, or your usual contact at the firm on +44 (0)20 3375 7000.

This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.

© Farrer & Co LLP, August 2019