Perceived disability
Tuesday 23rd January 2018
The EAT has upheld the ET’s decision in the Chief Constable of Norfolk v Coffey finding that a police officer suffered direct discrimination when she was denied a transfer as a result of a perceived disability.
In 2011, Mrs Coffey applied to become a police constable with the Wiltshire Constabulary. A medical highlighted some hearing loss accompanied by tinnitus, concluding that her hearing fell just below the standard required. Mrs Coffey passed a practical functionality test and she served as a police constable on the front-line with no difficulties.
In 2013, she requested a transfer and underwent a further medical, which again showed some hearing loss. A recommendation that she undergo an “at work” test to assess her operational effectiveness was ignored. Further medical advice confirmed that her condition was stable, that there had been no deterioration and that she would pass a practical text. Despite this, the Acting Chief Inspector refused the transfer request. The ACI did not believe Mrs Coffey to be disabled, as there was no substantial adverse impact on her ability to carry out her normal day to day activities, but she was concerned about the risk of increasing the pool of officers on restricted duties in the future.
Mrs Coffey alleged direct discrimination, arguing that she had been treated less favourably because it was perceived that she had a disability, in the form of a progressive condition which could deteriorate and result in restricted duties.
The ET found in favour of Mrs Coffey, believing that it was clear from the ACI’s comments that she considered Mrs Coffey had a potential or actual disability which could result in restricted duties and had directly discriminated against her by denying the transfer.
The EAT upheld this decision and outlined the correct approach to determining whether there was a perception of disability. Focus should not be on the ACI’s understanding of the law, but on whether she perceived Mrs Coffey to have an impairment with the features set out in the legislation. If Mrs Coffey’s condition were to progress to the extent that it required her to be placed on restricted duties, there would be a substantial adverse effect on her day to day activities. Reference to the risk of employing a permanently restricted officer could only mean that the ACI perceived the condition might be progressive and such conditions are specifically within the definition of disability.
The EAT accepted that a genuine difference in abilities will be a material difference when carrying out a comparison, but a flawed belief in a lack of ability was not. The ET had been entitled to find that the transfer request would have been approved for another individual with the same abilities, but who did not have a condition which the employer believed to be progressive.
All information in this update is intended for general guidance only and is not intended to be comprehensive, or to provide legal advice.