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31 January 2018
In Chief Constable of Norfolk v Coffey the Employment Appeal Tribunal (EAT) confirmed that it is unlawful to discriminate against an employee because of a perceived disability, even where the employee is not disabled under the relevant legal test.
Disability discrimination law usually protects only individuals who are actually disabled. The legal test for disability requires the impairment to be long term (either lasting at least 12 months or a recurring condition) and to have a substantial effect on the person's ability to carry out normal day-to-day activities. This means that people with short-term or less serious conditions are not regarded as disabled for the purposes of discrimination law.
What happens, then, if an employer wrongly thinks that a person is disabled and discriminates against him or her on that basis? Does that person have a discrimination claim? Discrimination based on an incorrect perception is well established for other protected characteristics. It is most relevant for characteristics which are not immediately obvious (eg, sexual orientation). If an employer assumes that someone is gay and treats him or her badly because of this, it does not matter whether he or she is gay. The person has been treated differently because of a perception about sexual orientation and that constitutes unlawful direct discrimination.(1)
The EAT decision considered whether the same approach applies to direct disability discrimination.
Lisa Coffey was a police constable. Although she had some hearing loss which was marginally outside the range set for recruitment, she had passed a practical functionality test and was therefore allowed to join the police force. In 2013 she applied to transfer to Norfolk Constabulary. She attended a health assessment, which found that her hearing was just outside the usual standards for recruitment. The medical adviser noted that Coffey had been able to undertake an operational policing role and recommended that she have an at-work test. Instead, Norfolk Constabulary declined Coffey's request to transfer on the basis that her hearing was below the acceptable and recognised standard, and it did not want to risk increasing the number of police officers on restricted duties.
Coffey's hearing loss did not meet the legal test of a disability as it had no substantial adverse effects on her ability to carry out normal day-to-day activities. She brought a direct disability discrimination claim on the basis that she had been perceived to have a disability in the form of a progressive condition, which was shown by Norfolk Constabulary's concern that she would end up on restricted duties. The case was successful at the employment tribunal.
The EAT agreed with the tribunal's decision and held that Coffey could bring her claim on this basis.
On the issue of whether Norfolk Constabulary perceived Coffey to be disabled, the EAT confirmed that a perception of disability was sufficient for a direct discrimination claim. In this case, the officer who decided to reject Coffey's transfer request did not believe that she was disabled at that time. However, the officer thought that Coffey may need to be moved onto restricted duties at a later date. This showed a perception that Coffey had a progressive condition which was likely to worsen, although this was not the case. People with progressive conditions are treated as disabled under the law; therefore, the officer had incorrectly perceived Coffey as disabled.
The EAT then considered whether this constituted direct discrimination and found that it did. It compared Coffey's treatment with that of someone with the same hearing abilities, who was not perceived as having a progressive condition. This comparator would not have been treated in the same way. It was Norfolk Constabulary's belief that Coffey's hearing would deteriorate, which led it to reject her transfer request. Coffey had been treated less favourably because of the perception that she was disabled; therefore, she had been directly discriminated against.
Discrimination based on a perception of other protected characteristics (eg, race, religion or sexual orientation) is a familiar issue. The case confirms that disability discrimination works in the same way.
The complication here is that disability differs from other characteristics, as there is a specific legal definition of what constitutes a 'disability'. The officer who made the decision had perceived something about Coffey which met this legal definition – namely, that she had a progressive condition. However, the question arises as to what would happen if the decision maker wrongly perceived that someone had a health condition which did not meet this definition? Alternatively, what if the decision maker wrongly thought that a short-term condition (eg, a broken leg) met the definition of 'disability' and treated someone badly because of this?
The EAT stated that the question was whether the decision maker "perceived [Coffey] to have an impairment with the features set out in the legislation". In other words, the perception must be of a health condition which meets the legal test of disability. This was easy to show in Coffey's case because she was thought to have a progressive condition. In other cases, it may be more difficult to show whether the decision maker perceived something that was long term or serious enough to meet the legal test. This will be particularly problematic in cases involving a mental impairment, where a general perception that someone is depressed or anxious may need examining in detail.
Leaving aside these complex points, the case clarifies that ignorance about disability can create trouble for employers. Even where it is incorrect, an assumption or perception about a health condition can be direct disability discrimination.
For further information on this topic please contact Michael Burd at Lewis Silkin by telephone (+44 20 7074 8000) or email (firstname.lastname@example.org). The Lewis Silkin website can be accessed at www.lewissilkin.com.
(1) For further details please see here.
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