Can perceived disability constitute direct discrimination?

The Court of Appeal, in Chief Constable of Norfolk v Coffey, has considered for the first time whether refusal of employment as a result of a perception of a progressive condition causing potential future inability to carry out duties can constitute direct discrimination.

Facts

Lisa Coffey was employed as a police constable in the Wiltshire Constabulary from 2011. She suffered a condition which caused a degree of hearing loss and tinnitus; however she was able to fulfil her role as a frontline officer without concern. Coffey was able to carry out her “normal day to day activities” and so was not disabled within the meaning of the Equality Act 2010.

Coffey applied for a transfer to Norfolk Constabulary in 2013 and as part of the process attended a pre-employment health assessment, where the medical adviser noted that her hearing was “just outside the standards for recruitment strictly speaking”. Based on this advice, Coffey was refused the transfer on the basis that her hearing was below the recommended standard and there was a risk of “increasing the pool of officers on restricted duties”.

Coffey brought a disability discrimination claim in the Employment Tribunal on the basis that she had suffered discrimination because of a perceived disability. Her claim was that she had been treated less favourably because of the perception that her hearing loss could potentially in the future lead to her being unable to carry out the duties of a frontline officer and this perception was the reason for the refusal of her transfer, which constituted discrimination.

Outcome

Her claim succeeded and was upheld by the Employment Appeal Tribunal (EAT). 
The EAT emphasized that the phrase “normal day to day activities” in relation to a direct discrimination claim under section 13 of the Equality Act 2010 should be interpreted to include professional duties. The perception that Coffey would or could be unable to perform frontline officer duties amounted to a perception that Coffey had a potential disability, and less favourable treatment based on that perception constituted discrimination.

The outcome was further appealed to the Court of Appeal and the Court of Appeal upheld the decision.

The Court of Appeal held that if a Claimant is perceived to have a condition that may affect the ability to carry out day to day activities, then they are to be treated as disabled within the meaning of the Equality Act 2010. Once it was accepted that a perceived progressive condition is to be treated as a disability, it follows that perception discrimination falls within the terms of a direct discrimination claim under section 13 of the Equality Act 2010.

The Constabulary tried to argue that this was not actually a complaint of discrimination within section 13, but a complaint of discrimination arising from disability falling within section 15. It argued that the tribunal found that the transfer refusal was not because of her disability itself – that is, the fact that her hearing was (or would become) seriously impaired – but because of something arising in consequence of that impairment. This argument was rejected in this instance.

Implications

It will be important to bear this in mind when recruiting; a concern about the ability of someone to carry out a role may constitute direct discrimination, where it is influenced by a stereotypical assumption or perception about the effects of a disability or condition.

The Court of Appeal did emphasise that that it does not follow that a claim of direct discrimination will succeed in cases where employees suffer detriment because of a perception that they will be unable to do the work required as a result of disability. Such cases typically are brought under S.15, and the employer will have the opportunity to justify the treatment complained of.

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