In this case the EAT upheld an employment tribunal decision that a police officer, who was turned down for a transfer because of hearing loss had suffered direct discrimination because of a perceived disability.
Mrs Coffey, a serving police officer, was refused a transfer from the Wiltshire Constabulary to the Norfolk Constabulary. At her pre-employment health assessment, the medical adviser noted that her hearing was ‘just outside the standards for recruitment strictly speaking’ but that she had undertaken an operational policing role with the Wiltshire Constabulary without any undue problems. He recommended that Mrs Coffey undergo an ‘at work’ test, but this recommendation was not carried through by the Assistant Chief Inspector (ACI) who dealt with the application. Instead, the ACI declined Mrs Coffey’s request to transfer on the basis that her hearing was below the acceptable and recognised standard, and that it would not be appropriate to step outside that standard given the risk of increasing the pool of officers on restricted duties.
Mrs Coffey brought an employment tribunal claim for direct discrimination. She did not allege that she actually had a disability; her case was that 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, including working activities. Instead, she argued that she had been treated less favourably because she was perceived to have a disability, in the form of a progressive condition that could well develop to the point of having a substantial impact on her ability to carry out day-to-day activities. The tribunal considered that the only way to read the ACI’s comments about the risk of Mrs Coffey ending up on restricted duties was that she perceived that Mrs Coffey had a potential or actual disability which could lead to the Constabulary having to make adjustments to her role as a front-line police officer. Since this perception was the reason for refusing the transfer, the tribunal upheld the discrimination claim.
The Police Constabulary appealed to the EAT arguing that the tribunal had been wrong both in its finding that 1) the ACI perceived Mrs Coffey to be disabled, and 2) she had been treated less favourably because of that perception.
On the first point, the EAT stressed that the question of whether a discriminator perceives someone to be disabled does not depend on whether they are actually disabled as a matter of law, but whether it is perceived they have an impairment as set out in the legislation. Where a person has a progressive condition that results in an impairment having an effect on his or her ability to carry out day-to-day activities, but the effect is not a substantial adverse effect, it will still be treated as such if it is likely that the condition will result in a substantial adverse effect in future. Although the ACI protested that she did not consider Mrs Coffey disabled within the meaning of the Equality Act, her knowledge of the law was incomplete and did not include the further information contained in the Act about progressive conditions. The reference to the risk of Mrs Coffey being on restricted duties could only be read as the ACI perceiving that she had a progressive condition which could worsen. The tribunal had therefore been entitled to find that the ACI perceived Mrs Coffey to be disabled.
Turning to whether the tribunal had been correct to find that there had been direct discrimination, the EAT accepted that a genuine difference in abilities will be a material difference between claimant and comparator. However, it saw no warrant for an employer’s flawed belief in a lack of ability to be a material difference. The tribunal was entitled to conclude that a person with the same abilities as Mrs Coffey, whose condition the employer did not perceive to be likely to deteriorate so that he or she would require restricted duties, would not have been treated as Mrs Coffey was. The tribunal did not err in law in concluding that she had been subjected to direct discrimination.
What does this mean for employers?
Cases of perceived discrimination are relatively rare. This case clarifies the test for perceived disability discrimination, and what a claimant has to show in order to establish the less favourable treatment was because of that perception. Here, the ACI ignoring advice to practically assess Mrs Coffey was fatal. Employers need to avoid stereotypical assumptions about any perceived disability, including how they might deteriorate, and instead make decisions on the basis of the employee's abilities at the time any decision about their employability is made. This case makes it clear that assumptions about individuals with potential disabilities are not only ill-considered and unfair, but are also likely to be found to be discriminatory.