By Bethan Carney, Firm: Lewis Silkin LLP

The UK Court of Appeal has found that it is unlawful to discriminate against a person because of a mistaken perception that they have a progressive condition which would make them unable to perform the full functions of the role in future.

Facts

Lisa Coffey was a police constable in Wiltshire who had minor hearing loss. Her hearing was slightly worse than the acceptable standard laid down in the Medical Standards for Police Recruitment. Those standards, however, are not decisive. Accompanying guidance said that candidates should be looked at individually to assess whether they had the ability to perform the role and consideration should be given to a practical test to assess functional ability to perform the role.

The Wiltshire Constabulary followed this guidance and arranged a practical functionality test, which Ms Coffey passed. She worked successfully as a police constable for two years, without needing any adjustments, before applying for a transfer to the Norfolk Constabulary for family reasons.

Despite recognising that Ms Coffey was currently performing the role to an acceptable standard, Acting Chief Inspector Hooper of the Norfolk Constabulary declined her request to transfer. ACI Hooper’s decision was made on the basis that Ms Coffey’s hearing was below the Medical Standard and Hooper did not wish to risk increasing the number of police officers on ‘restricted’ duties. The Norfolk Constabulary did not give Ms Coffey an ‘at work’ test of practical functionality.

It was accepted by all parties that Ms Coffey’s hearing loss did not have a substantial adverse effect on her ability to perform the role, so the question arose whether she was ‘disabled’ and so able to bring a claim for disability discrimination.

The Employment Appeal Tribunal decision

The legal test for disability requires the impairment to have a substantial and long-term adverse effect on a person’s ability to carry out normal day-to-day activities. If someone has a ‘progressive condition’, which means that a current more minor impairment will in future be likely to have a “substantial” adverse effect, the test is also deemed to be met.

Ms Coffey’s condition was not progressive but ACI Hooper believed that it might be and that she might, in future, not be able to perform all aspects of the role. ACI Hooper made her decision to reject the transfer request based on this incorrect assumption about Ms Coffey’s hearing.

Other types of discrimination claims, such as claims for sexual orientation discrimination, have been brought successfully based upon the discriminator’s incorrect perception that the individual has the protected characteristic. The EAT held that the same could be true of disability discrimination.

The EAT said that the discriminator would not need to believe that the individual was disabled as a matter of law, in other words they would not need to know the legal definition of disability. But would need to perceive the individual to have ‘an impairment with the features which are set out in the legislation’.

Court of Appeal decision

The Court of Appeal confirmed that the EAT had taken the correct approach, saying that ‘what is perceived must … have all the features of the protected characteristic as defined in the statute.’

The Norfolk Constabulary attempted to argue that ACI Hooper did not have any perception about Ms Coffey’s ability to perform ‘normal day-to-day activities’ rather her perceptions were around Ms Coffey’s potential future ability to perform the specialised and exceptional role of a front-line police officer. Although the Court of Appeal accepted that some roles would require exceptional skills, which were not ‘normal day-to-day activities’, the job of a police officer did not. Acknowledging that the role of a front-line police officer is in many respects unique and can be challenging and dangerous, the court said that the ‘activities that it involves – at least those for which good hearing is relevant – are nevertheless for the purposes of the Act ‘normal day-to-day activities’’.

Implications

The definition of disability discrimination is complex and technical and this decision adds another layer of complexity, not making it any easier for employers (or employees) to understand and apply.

The first and most straightforward point to note is that the Court of Appeal agrees that it is unlawful to discriminate against someone because of a mistaken belief that they are disabled. And it has confirmed that the test is not whether the discriminator believes the impairment meets the legal definition of disability, but whether they believe it has those features (whether they believe it is substantial and long-term, for example).

Beyond this point, the case throws up some difficult issues. The immediate implication appears to be that if an individual has a progressive condition, but it currently has no adverse impact and the employer appreciates this, that individual is not protected by disability discrimination law whilst the condition is still asymptomatic. If, however, the employer incorrectly thinks the individual’s condition does have a current, minor, impact, protection against discrimination would apply. Furthermore, if an individual’s condition would not result in a current or future substantial impairment but the employer mistakenly believed that it would, that individual would also be protected on the basis of perceived disability, even though this could result in them having greater protection than an individual whose condition is actually going to worsen.

In this case, the problem arose because the employer did not properly explore the facts before jumping to a conclusion that Ms Coffey’s transfer application should be rejected. It should have carried out an ‘at-work’ hearing test and obtained further medical evidence about whether Ms Coffey’s hearing was going to deteriorate.

It can be lawful for employers to apply performance standards and reject job applicants who cannot meet them. If the applicant fails the performance standard because of a disability then this might result in another type of discrimination where an individual is treated unfavourably because of something arising in consequence of their disability, However, this type of discrimination can potentially be justified. There was some debate in this case about whether it was more properly a claim for discrimination arising from disability because it was really about whether Ms Coffey could do the job. However, the Court decided that this was a direct discrimination claim because, on the facts, ACI Hooper was not simply acting on the basis of the actual things that (so she believed) Ms Coffey could not do. There was an additional element, in that she was significantly influenced by stereotypical assumptions about the effects of hearing loss. Such stereotypical assumptions can found a claim for direct discrimination.

In this case, Ms Coffey was not pursuing a claim for discrimination arising from disability by the time it came to be heard by the Court of Appeal. But she may well not have been able to succeed with such a claim anyway, because the wording of the statute does not seem to permit a claim for discrimination arising from a perceived disability. The Court of Appeal noted this potential omission in protection from discrimination but was not obliged to reach a decision on this point and declined to do so. We await a further judgment to resolve the question of whether that type of claim could succeed.