The Chief Constable of Norfolk v Mrs L Coffey UKEAT/0260/16/BA
This is the first case which has found perceived disability discrimination under the Equality Act 2010. Under the Act, a person has a disability if they have an impairment, whether mental or physical, which has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities (section 6(1)), or if they have a progressive condition which has some effect on their day-to-day activities, and is likely to result in the impairment having a substantial adverse effect (Schedule 1, paragraph 8). Although the UK’s Equality Act refers to day-to-day activities, ECJ case law (HK Danmark acting on behalf of Ring) has held that a disability is a limitation which, together with other barriers, “may hinder the full and effective participation of the person concerned in professional life on an equal basis with other workers”.
Less favourable treatment of one person compared to another (whether real or hypothetical, as long as they have abilities materially the same as the complainant) is unlawful if it is “because of” a protected characteristic such as disability. This wording means it is not necessary that the victim of discrimination has the protected characteristic. They may be discriminated against because of their association with another who has the protected characteristic, or because the perpetrator perceives that they have that protected characteristic.
The Claimant was a serving police constable in Wiltshire, who had previously worked for the Norfolk Constabulary. When she applied to become a Wiltshire police officer, her medical examination revealed she suffered from a form of hearing loss and tinnitus in both ears. Her hearing was below the national standard for police recruitment.
However, the Home Office guidance which accompanies the standard says that, where there is hearing loss below the standard expected, consideration should be given to a practical hearing test to assess functional disability. All cases where individuals did not meet the medical standard should be looked at individually, and assessed against the role, functions and activities of an operational constable.
Wiltshire Constabulary arranged a functional hearing test, which the Claimant passed, and employed her as a police officer on front-line duty.
In 2013, the Claimant applied for a transfer back to Norfolk. She explained that she had some hearing loss, gave the results of the functionality test, and that no adjustments had been necessary for her work. At her pre-employment health and fitness assessment, the medical adviser noted that her hearing loss was “just outside the standards for recruitment strictly speaking” but that she had been working for Wiltshire Constabulary without any problems, and recommended a practical hearing assessment.
Norfolk Constabulary instead sought the opinion of another medical adviser (who said the Claimant’s hearing was stable, and she would pass a practical test), and the Claimant herself saw an ENT specialist who agreed.
Despite these reports, Acting Chief Inspector Hopper declined the Claimant’s application for a transfer on the basis that the Claimant’s hearing was below the required standard. To accept her transfer request would mean that Norfolk Constabulary would take on the assessment and management of her ability to perform her role.
The Claimant brought a claim for direct disability discrimination, on the basis that Norfolk Constabulary had perceived her to have a disability. It was not alleged that she had a disability; her hearing loss did not have and was not likely to have a substantial adverse effect on her ability to carry out day-to-day activities. The Acting Chief Inspector stated that she did not consider the Claimant to be disabled, but that she had rejected the Claimant’s application because of the cost and resourcing pressures on police forces. She could not, she said in evidence, justify appointing someone who fell outside national standards and might not be fully operational.
The employment tribunal found that Norfolk Constabulary had directly discriminated against the Claimant, because the Acting Chief Inspector had perceived she had an actual or potential disability, which could lead to reasonable adjustments being required either now or in the future.
Norfolk Constabulary appealed to the Employment Appeal Tribunal. It argued that the correct test was that at section 6(1), and that the Acting Chief Inspector had not perceived that the Claimant had an impairment which has a substantial and long-term adverse effect on her ability to carry out normal day-to-day activities.
The EAT (HHJ David Richardson) dismissed the appeal. While the tribunal had not expressly referred to progressive conditions under paragraph 8, Schedule 1 to the Equality Act, it was clear from the evidence given that the Acting Chief Inspector perceived that the Claimant’s condition might well progress, and that she would no longer be fully operational.
The definition of disability in the Equality Act must be interpreted in line with ECJ case law, meaning that the “normal day-to-day activities” includes those relevant to effective participation in professional life. For the Claimant, that included full operational duties as a constable.
The tribunal had found that a person with the same abilities as the Claimant but with a condition not perceived to be likely to worsen, would not have been treated in the same way. The EAT agreed that the tribunal was entitled to find that Norfolk Constabulary had directly discriminated against the Claimant. There was no question that an employer’s flawed belief in a person’s ability could be a material difference when considering who the comparator should be.
What to take away
The case demonstrates that perceived disability discrimination is unlawful, and can be brought as a claim for direct discrimination. This case seems particularly noteworthy given that Norfolk Constabulary had clear medical evidence from three different experts that the Claimant’s hearing loss was stable, and that she had been carrying on the precise job for which she was applying without any adjustments. It is surprising that Norfolk Constabulary did not act on the recommendation to allow her to take a functionality test.
In order to decide whether someone has been the recipient of perceived disability discrimination, it’s not necessary that the decision-maker knows all the details of disability discrimination law. The question is whether the decision-maker perceived that the person had an impairment which does have the features listed in the Equality Act 2010. This may not be simple.