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The law on discrimination can sometimes feel like a tangled web for employers who are trying to get it right. So it is helpful when a case – or on this occasion two – comes along which clearly answers the question being asked.

1. Is it direct disability discrimination if a non-disabled job applicant is rejected because of a perception that a medical condition could constitute a disability in the future?

Yes, held the Employment Appeal Tribunal in Chief Constable of Norfolk v Coffey.

Ms Coffey, a serving police officer, was refused a transfer from Wiltshire Police to the Norfolk Constabulary. She suffered from hearing loss which was at such a level that it was "just outside the standards for recruitment strictly speaking". However, she had been accepted by the Wiltshire Police following a practical function test and she had carried out duties there without issue. Following Ms Coffey's transfer application, Ms Coffey underwent a hearing test which recorded the same level of hearing loss as had been previously identified. Notwithstanding this, her transfer request was rejected (without a function test) based on concerns that her hearing loss might result in her ending up on restricted duties should her hearing further deteriorate at a later date.

Ms Coffey subsequently brought a claim in the Employment Tribunal (ET) for direct discrimination, based on the perception that she would be disabled in the future. In order for a claimant to succeed in a claim for direct discrimination, they need to demonstrate that they have been treated less favourably than a real or hypothetical comparator whose circumstances are not materially different to their own. In this case the hypothetical comparator was someone whose condition was not perceived as likely to deteriorate so as to result in restricted duties. The ET found in Ms Coffey's favour that she had been directly discriminated against.

Norfolk Constabulary subsequently appealed to the Employment Appeal Tribunal (EAT) (HHJ David Richardson sitting alone), but Ms Coffey was successful. The EAT stated that the question of whether an employer perceives someone to be disabled does not depend on whether the employee is actually disabled as a matter of law, but whether it is perceived that the employee has or could have an impairment as set out in the Equality Act 2010. HHJ David Richardson went on to add that: "There would be a gap in the protection offered by equality law if an employer, wrongly perceiving that an employee's impairment might well progress to the point where it affected his work substantially, could dismiss him in advance to avoid any duty to make allowances or adjustments.'

The lesson for employers: This is the first case to directly address perceived disability discrimination under the Equality Act 2010 and confirms that claims based on perceived disability can be brought as direct discrimination claims. Employers need to avoid stereotypical assumptions about perceived disabilities and how conditions may or may not deteriorate, and instead make decisions on the basis of an employee's abilities at the time any decision about their employability is made.

2. Can an employer be held vicariously liable for a single statement made by an employee?

Yes, concluded the ET in Nazarczyk v (1) TJ Morris Ltd; (2) Cowley.

By way of brief background, employers can be held vicariously liable for acts of its employees under the Equality Act 2010, provided that the offending act takes place "in the course of employment". Examples of "in the course of employment" would include at the employee's workplace, during working hours, whilst representing the employer at events and so forth.

Mr Nazarczyk claimed that he was subject to a number of discriminatory behaviours from one of his colleagues, Mr Cowley, whilst at work. Mr Nazarczyk had been concerned about his daughter (who also worked at the same warehouse with him) walking home late at night. He had asked Mr Cowley if his daughter could work the same shift as him, so that they could walk home together. Mr Cowley refused and was alleged to have said to Mr Nazarczyk that "if you do not like it, pack yourself and your family up and go back to Poland". Mr Nazarczyk brought a claim against his employer and Mr Cowley for direct race discrimination.

The ET concluded that this single comment made by Mr Cowley to Mr Nazarczyk whilst they worked together amounted to direct discrimination, as it constituted unfavourable treatment directly linked to his Polish nationality. The tribunal found that Mr Cowley would not have made such a comment to a hypothetical British worker. The ET went on to find that Mr Nazarczyk's employer was vicariously liable for the discrimination and recommended that it put in place diversity and equality training.

The lesson for employers: This case highlights the fact that a single comment from an employee can still amount to direct discrimination. Employers should be mindful of this and ensure that all reasonable steps are taken to prevent discriminatory behaviour in the workplace. This should include having appropriate diversity and equal opportunities policies and training in place, dealing with any complaints of this nature promptly and seriously, and ensuring that appropriate disciplinary action is taken against perpetrators.

If you require further information on anything covered in this briefing please contact Alice Yandle or your usual contact at the firm on 020 3375 7000.

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

(c) Farrer & Co January 2018

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