The Employment Appeal Tribunal (EAT) has considered a claim for direct disability discrimination based on the employer’s perception that an employee’s condition would become a disability in the future.

Chief Constable of Norfolk v Coffey, EAT

Facts

Mrs Coffey was a serving police officer based in Wiltshire. She suffered from some hearing loss, meaning that she was just outside the national hearing standards applicable to the police force. However, she passed a functionality test which enabled her to work as a police constable without the need for any adjustments. When she applied to transfer to the Norfolk Constabulary, her application was rejected by the Acting Chief Inspector (ACI) on the basis that she did not meet the national standards for hearing. A practical functionality test was not carried out.

Mrs Coffey brought a claim against Norfolk Constabulary for direct disability discrimination, alleging that the decision to reject her application was due to the perception she had a disability. The employment tribunal upheld her claim. The Constabulary appealed to the EAT.

EAT decision

The EAT dismissed the appeal, upholding the finding of direct disability discrimination. The ACI had perceived that Mrs Coffey’s condition was likely to progress, meaning that she would need to be placed on restricted duties. The perception was, therefore, that she had a progressive condition that would fall within the definition of a disability.

Consequences

This is the first EAT decision dealing with perceived disability discrimination under the Equality Act 2010. The fact that the claimant’s hearing loss did not satisfy the definition of disability under the Act at the time the decision was taken was immaterial. It was the employer’s perception that the condition would deteriorate in the future, and would, therefore, amount to a ‘disability’, that gave rise to the liability for direct discrimination.