Is it discrimination if a non-disabled job applicant is rejected because of a perception that a condition could become a disability in future? Our litigator Ed McFarlane looks at a recent Employment Appeal Tribunal case that answers that question.
Yes, held the EAT in Chief Constable of Norfolk v Coffey, upholding a finding of disability discrimination by perception.
The Claimant was a serving police officer in Wiltshire Police who applied for a transfer to the Norfolk force. She had a degree of hearing loss, which would usually have disqualified her from recruitment when she joined the Wiltshire force, but she was accepted after a function test.
Norfolk Police rejected her transfer request because her hearing was just below the acceptable standard, without a function test, based on concerns that she might end up on restricted duties should her hearing deteriorate.
The tribunal found that this decision was direct discrimination based on a perception that the Claimant would be disabled in the future. The hypothetical comparator would be a candidate whose condition was not perceived as likely to deteriorate so as to require restricted duties.
The EAT noted: “There would be a gap in the protection offered by equality law if an employer, wrongly perceiving that an employee’s impairment might well progress to the point where it affected his work substantially, could dismiss him in advance to avoid any duty to make allowances or adjustments.”
It’s an interesting EAT case on perception and direct discrimination involving the refusal to accept a police officer’s transfer because of hearing problems. It’s noteworthy that the decision maker, having rightly taken the view that the candidate was not disabled before rejecting her, said that had a candidate been disabled, then they would have looked at adjustments. Since it was a direct discrimination case, there could not have been any justification for the decision.
The case is slightly unusual in that medical information about the candidate was available before the offer was made, given the nature of the job. However, it does show that there is a line between rejection because of a (perception of) disability, always unlawful under S13 EA 2010 (direct discrimination); and potentially justifying a decision not to employ someone because of something arising from a disability under S15 EA 2010.
It is quite a minefield for employers making assessments when they have knowledge of something that is, or might be, a disability.