The recent EAT decision in Chief Constable of Norfolk v Coffey removes uncertainty regarding whether perceived disability discrimination complaints qualify for protection but sets the bar high for claimants by emphasising the importance of the statutory disability test.
In J v DLA, the EAT made obiter remarks regarding the challenges of perceived disability discrimination and suggested that an ECJ reference would be required to confirm whether it fell within the legislation. The EAT recognised that, save for deemed disabilities, there would be difficulties as to whether a condition was perceived as meeting the statutory test.
There was some suggestion that such concerns stemmed from the drafting of the Disability Discrimination Act 1995. However, in Peninsula Business Service Ltd v Baker, the EAT rejected a complaint of disability-related harassment based on a disability asserted by the claimant. The reservations regarding perceived disability in J v DLA were also noted and the EAT was not persuaded that the reasoning hinged “to any extent on the old statutory language”.
This was contrary to the guidance in the Explanatory Notes to the Equality Act 2010 (paras 59 and 63) and the Code of Practice (paras 2.11 and 3.17) which stated that perceived disability discrimination was covered.
In the recent case of Chief Constable of Norfolk v Coffey, the EAT found that section 13 of the Equality Act 2010 (EqA) was “wide enough to encompass perceived discrimination” and “makes no distinction....between the protected characteristic of disability and other protected characteristics”.
The Claimant was a serving police officer who applied for a transfer to Norfolk. She disclosed that she had hearing loss which did not meet recruiting standards but that she had passed a practical test. No adjustments were required and she did not claim she was disabled.
Her application for a transfer was successful, subject to health checks. The assessment recorded that the Claimant's hearing loss put her just outside the recruitment standards but recommended an “at work test”. Norfolk Constabulary sought a second opinion which confirmed that her hearing was just outside the normal range. The Employment Tribunal (ET) noted that “it could be concluded that there had been no deterioration in the Claimant’s hearing...and she would pass a practical test”.
The transfer request was referred to Acting Chief Inspector Hooper who declined the application without a functional test. She gave evidence that she did not regard the Claimant as disabled. However, she expressed concern that “to knowingly risk increasing the pool of restricted officers.....could further reduce the pool of officers who are operationally deployable”. The ET found that she perceived that the Claimant had a potential disability or an actual disability that could lead to future adjustments being required.
The finding of perceived disability discrimination was appealed on the grounds that it was not enough for there to be a perception that the Claimant could become disabled; the requirements of section 6 of the EqA had to be met.
The EAT recognised that, prior to the EqA, it appeared to be necessary for a claimant to have an actual disability. However, the EAT considered that, following cases such as Coleman v Attridge Law (Coleman) and CHEZ Razpredelenie Bulgaria AD v Komisia za zashtita ot diskriminatsia the position is clear that the Directive is not to be interpreted restrictively. An ECJ reference was not required.
The EAT recognised that there would be difficulties in deciding what the alleged discriminator perceived. Following the approach in J v DLA, the EAT explained that the answer would depend on whether the Claimant was perceived as having “an impairment with the features which are set out in the legislation”.
Acting Chief Inspector Hooper anticipated that Mrs Coffey’s condition would create a risk that she would be placed on restricted duties in the future, at which point there would be a substantial adverse effect on day-to-day activities. This type of perception fell within the category of progressive conditions pursuant to Schedule 1(8) EqA.
The EAT has confirmed that discrimination by perception extends to disability in circumstances where previous cases (such as Aitken v. Commissioner of the Police of the Metropolis at EAT level) had interpreted Coleman as requiring an association with a person with an actual disability. However, a complaint of perceived disability discrimination is no less challenging than a complaint of actual disability discrimination. The fact that the perception must encompass the requirements of s6 EqA indicates that these cases will turn on the alleged discriminator’s precise understanding of the claimant’s health (given the medical model of disability in the EqA).
A successful complaint of perceived disability discrimination will be particularly challenging in cases involving mental health. In Fortt v Chief Constable of South Wales Police the ET was prepared to find that a police officer was perceived as being disabled in a general sense where the decision-maker rejected a transfer application based on stereotypical assumptions about mental health and future attendance. If the stricter approach in Coffey had applied, the claimant (who had taken 4 months’ absence for anxiety) may have failed to establish that the condition was perceived as long-term rather than a short-term reaction to specific circumstances (per the distinction in Herry v Dudley Metropolitan Borough Council).
Respondents may also defend claims on the basis that they took action when they were unable to establish the medical position (for example, because the claimant refused to attend a medical examination or because medical reports were inconclusive). In Agbakoko v Allied Bakeries, the EAT upheld the finding that the employer had fairly dismissed an employee whose behaviour caused concern to colleagues, because there was a lack of clarity regarding his medical condition and a concern that his conduct and health would deteriorate. Claimants will need to use subject access requests to obtain material which elucidates the decision-making process and the decision-makers’ understanding of their health.