Judgment in the first case of perception discrimination to reach the Court of Appeal has been handed down in Chief Constable of Norfolk v Coffey.1 It is, then, a timely opportunity to review the important points of principle and practice that arise in such cases.
Defining perception discrimination
The Equality Act 20102 does not use the term ‘perception discrimination’, but it is an established type of prohibited conduct. Underhill LJ (giving the leading judgment in Coffey) offers a simple definition: perception discrimination occurs where:
A acts because he or she thinks that B has a particular protected characteristic even if they in fact do not.3
Although this article focuses on perceived disability, the concept also applies to other protected characteristics, as the following helpful illustration, taken from the Explanatory Notes to the 2010 Act, demonstrates:
If an employer rejects a job application form from a white man who he wrongly thinks is black, because the applicant has an African-sounding name, this would constitute direct race discrimination based on the employer’s mistaken perception.
The facts of Coffey
Ms Coffey is a police officer in the Wiltshire Constabulary. She has a degree of hearing loss which (it was agreed) did not amount to a disability and she had operated on the front line since 2011 without any difficulty.
In 2013 she applied to transfer to the Norfolk Constabulary. On a medical examination, her hearing was assessed as falling “just outside the standards for recruitment strictly speaking”.4 Home Office guidance provided that such cases should be judged on their individual merits. Accordingly, the medical adviser recommended an at-work test to assess her effectiveness in an operational environment.
Instead of following this recommendation, Norfolk simply refused the transfer. The overt reason for the refusal was that Ms Coffey’s hearing was below the standard and, if the transfer was approved, it would bring with it a risk that her hearing would deteriorate in future such that she would no longer be deployable on the front line. (This amounted to a belief not that Ms Coffey was actually unable to work, but that she might potentially become unable to work.5)
Ms Coffey complained to an employment tribunal that she had suffered direct discrimination (under section 13). Her case was that the decision-maker had declined the application to transfer because she believed that Ms Coffey had a disability within the meaning of section 6.
The tribunal upheld the complaint. Norfolk’s appeals to the Employment Appeal Tribunal and the Court of Appeal were both dismissed.
Points of principle
Perception of disability?
The Court of Appeal’s reasoning begins by endorsing the principle that in a claim of perceived disability discrimination the alleged discriminator must have believed that all the elements of the statutory definition of disability are present; but they do not have to have known (as a matter of law) that the facts that constitute the disability amount to a disability within the meaning of the Act.6
On this point, Norfolk’s argument had two strands, both of which were rejected:
1. Norfolk argued that the decision-maker’s belief that Ms Coffey might become unable to perform front-line duties was not a belief about her ability to carry out normal day-to-day activities. This was rejected on the ground that there was no evidence that front-line officers need to have “peculiarly acute hearing: they are not piano-tuners or audio engineers”.7 Thus the decision-maker was concerned about the impact of Ms Coffey’s condition on normal day-to-day activities.
2. The second strand related to the finding that the decision-maker had not perceived Ms Coffey actually but only potentially to be unable to work on the front line. Did this fall within the terms of the Act? The Court of Appeal held that it did by virtue of para. 8 of Schedule 1 to the Act (‘progressive conditions’). Underhill LJ’s analysis8 rewards full reading; but in short he concluded that, because the decision-maker believed that Ms Coffey had a condition which might prevent her performing front-line duties in future, she must have believed the condition would get worse – which is synonymous with believing she had a progressive condition, as defined in the Act.
Section 13 or section 15?
As readers will know, the essential distinction between sections 13 and 15 is that, under the former, the act complained of is done because of the (actual or perceived) disability
Ms Coffey’s claim was only brought under section 13, section 15 having been expressly abandoned. Norfolk argued that it was properly a section 15 case because the reason for the refused transfer was that she did not meet the required standards, not because of the (perceived) disability itself.
This argument failed. The real reason for the refused transfer was that the decisionmaker had made a stereotypical assumption about Ms Coffey’s condition that it would render her unable to perform front-line duties. And on the previous Court of Appeal authority of Aylott v Stockton-on-Tees Borough Council9, where the conduct complained of is significantly influenced by such an assumption, the claim can properly be framed as direct discrimination.10
Points of practice
Coffey raises a number of important practical issues which practitioners will wish to be alive to in cases of perceived disability discrimination:
1. Since the alleged discriminator must have perceived the claimant to have an impairment satisfying every element of the statutory definition, it will be important to lead evidence of the decision-maker’s thought-processes on each of the statutory elements.
2. Claimants must give careful thought whether to plead their claim under section 13 or section 15. Although finding for Ms Coffey on this issue, the Court of Appeal emphasised that most cases in which an employee suffers a detriment because they are (or are perceived) to be unable to do the work or do it to the required standard are in section 15’s domain. If the precise thought-process of the decisionmaker are not clear at the outset, it will be prudent to plead one claim in the alternative to the other.
3. If the claim is brought under only one of the two sections, respondents should consider arguing that it should properly have been brought under the other. (While this might simply lead to an application to amend, the claimant will nonetheless have to surmount that procedural hurdle.)
4. If it has been brought under section 15 only, it may be argued that that provision does not apply to perceived disabilities at all because of an arguably material difference in its wording compared to section 13 – a question which the Court of Appeal left open: see footnote 8 of Underhill LJ’s judgment.