Workers are protected from less favourable treatment based on the employer’s or another worker’s perception (whether rightly or wrongly held) that they have a protected characteristic, such as a disability.
The Court of Appeal has recently considered a perceptive discrimination claim for the first time. The Court was asked to consider whether a refusal of a police officer’s transfer request was discrimination because she was perceived to be disabled, or because the police force perceived that she might become disabled in the future.
C, a serving police officer, suffered with a hearing condition. Despite this condition, she was working on active front-line police duties. C applied for a transfer to a different police force. Her application was rejected on the basis that her hearing condition risked increasing the pool of officers on restricted duties. C brought a claim of direct discrimination on the basis that the reason her application had been unsuccessful was the perception that she would, at some point in the future, become a disabled person due to her hearing condition and that this would then require the police force to make reasonable adjustments for that disability.
Both the employment tribunal and EAT found in C’s favour. The force appealed to the Court of Appeal, which upheld the EAT’s decision. The Court accepted that the evidence in C’s case did not support the conclusion that the assistant chief inspector who had declined C’s transfer request had perceived C to have an actual disability. However, the assistant chief inspector had perceived C as having a ‘potential’ future disability. Therefore, C had suffered discrimination because of a perceived disability. The reason the force had refused C’s transfer request was its concern that, because of her hearing condition, C would in the future be unable to perform the role of a front-line police officer and would end up on restricted duties. The force believed that the claimant had a progressive condition, which may in the future meet the statutory definition of disability. The Court also rejected the force’s argument that C had wrongly classified her claim and ought to have brought it as a claim for discrimination arising from disability, which an employer can objectively justify.