While many employers are mindful not to discriminate during the interview process, it is also important to be aware that rejecting an applicant because a condition could become a disability in the future will also be direct discrimination.
This was demonstrated in the recent case of Chief Constable of Norfolk v Coffey. Mrs Coffey was a serving police officer in the Wiltshire Constabulary. When she joined, it was discovered she was just outside of the required hearing range. The rules said that where candidates did not meet the medical standard, they should be looked at individually. Wiltshire Constabulary followed this advice and arranged a practical functionality test which Mrs Coffey passed. She worked as a police constable on front-line duty with no adverse effects.
Mrs Coffey later requested a transfer to the Norfolk Constabulary. She disclosed that she had some upper range hearing loss and enclosed the report from the functionality test. Mrs Coffey passed the Norfolk Constabulary interview stage, subject to a fitness and pre-employment health assessment.
The Norfolk constabulary did not accept the recommendations of two separate medical advisers. Instead, the Constabulary declined Mrs Coffey’s application because her hearing was below the recognised standard for recruitment. The Acting Chief Inspector who made the decision said she did not regard Mrs Coffey as disabled, but that she regarded her as, at least potentially, a ‘non-disabled permanently restricted officer’ which she considered would make Mrs Coffey a liability to the already stretched Force.
The Employment Appeal Tribunal (“EAT”) said that this was direct discrimination. A non-disabled job applicant had been rejected because the employer perceived that a condition could become a disability in the future. The EAT said that direct discrimination is wide enough to include perceived discrimination.
Therefore, employers should be mindful of the risk of perceived discrimination particularly during the recruitment process.
A simple example of perceived discrimination is if an employer rejects a job application from a white man whom he wrongly thinks is black, because the applicant has an African-sounding name: this would constitute direct race discrimination based on the employer’s mistaken perception.
Another example of perceived discrimination is if a woman is blind and is rejected because the employer wrongly believes that because of her blindness she will not be able to type at a required speed. A stereotypical and incorrect assumption that a claimant has characteristics associated with a disability may found a claim for direct discrimination.
Employers should be wary of taking any action or decision which involves a perception that an applicant may have a disability in the future.