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In The Chief Constable of Norfolk v Coffey, the Employment Appeal Tribunal (EAT) ruled that it is direct disability discrimination to treat someone less favourably on the basis of an erroneous perception that an individual’s impairment would have a substantial adverse effect in the future.

Mrs Coffey applied to be a police constable for Wiltshire Constabulary in 2011 and undertook a medical as part of her application. The medical revealed that she suffered from mild hearing loss and tinnitus. A practical functionality test was taken and passed by Mrs Coffey, who became a front-line constable and she remained in this post without adjustments.

Direct perceived discrimination

In 2013, Mrs Coffey applied for a transfer to Norfolk Constabulary and was successful at the interview stage, subject to a health assessment. The test revealed that she had significant hearing loss. However, there was evidence to show that Mrs Coffey’s hearing had not deteriorated since 2011 and the medical adviser pointed out that she had been performing front-line duties without issue.

Despite this, Mrs Coffey’s application was refused on the basis of her hearing being “below the acceptable and recognised standard.” The Employment Tribunal found that this amounted to direct perceived discrimination and Norfolk Constabulary appealed the decision.

Direct discrimination

The EAT agreed with the tribunal on perceived direct discrimination, and His Honour Judge Richardson noted that: “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.”

He went on to confirm that such an assumption “may found a claim for direct discrimination”, adding that an employer would not be protected by arguing that they were applying a performance standard if the employer “wrongly perceives a person to lack an ability which that person actually has.”

The EAT noted that the hypothetical comparator in these situations would be a person who was not perceived to be disabled and who had the same abilities.

On this basis, the EAT found that Norfolk Constabulary had rejected Mrs Coffey’s application, as they believed that she would become “a liability” in the future because of her hearing.

Practical points for employers

Historically, the provisions for disability discrimination have required a finding that the relevant person meets the definition of ‘disabled’ under the Equality Act 2010. This case makes clear that it will still be disability discrimination if an employer erroneously treats an employee as disabled and subjects them to less favourable treatment accordingly.

An employer who rejects a disabled person’s application after applying a service standard that reveals the person did not actually have the ability to meet that standard will potentially be protected from a discrimination claim. However, there will be no such protection if there is a mistaken belief that that person does not have the requisite ability.

Employers should consider all relevant evidence and adhere to company policy when considering such an applicant and whether an impairment will inhibit a person’s ability to perform the role.

An employer who rejects an applicant on the assumption that an impairment will become an issue will likely fall foul of the Equality Act 2010.

For more information perceived discrimination or any of the other issues raised in this article, or on employment law in general, please contact Jonothan Scollen in the Leeds Employment Team by emailing [email protected] or calling 0113 368 7583.