In the recent case of Chief Constable of Norfolk v Coffey [2019], the Court of Appeal (“CA”) confirmed that it is discriminatory for an employer to treat an individual less favourably because it perceives that individual to have a disability (even if the individual does not actually have the disability). Whilst discrimination based on perception is already established in relation to other protected characteristics such as sexual orientation, this is the first case to directly address perceived disability discrimination under the Equality Act 2010 (“EA 2010”).
Employers and recruiters should take note as this decision increases the potential scope for disability discrimination claims from employees, workers and job applicants.
What do employers need to watch out for?
Facts
By way of background, Mrs Coffey was a police officer in Wiltshire Constabulary from 2011. During the recruitment process, she attended a medical which revealed that her hearing was slightly below the Home Office’s National Recruitment Standards. Mrs Coffey then took part in a practical functionality test which she passed, before going on to work on the front line.
In 2013, Mrs Coffey requested a transfer to Norfolk Constabulary for family reasons. She was required to attend a pre-employment health assessment which confirmed that her hearing was “just outside the standards for recruitment strictly speaking”. The medical adviser noted that Mrs Coffey had been carrying out a policing role without any undue problems, but recommended that she complete an “at work” test to assess her ability to work in an operational environment. This test would consider, for example, whether she could hear the radio and the environment around her.
This recommendation was not followed by the Acting Chief Inspector, who instead sought a second medical opinion. This time the medical adviser suggested that Mrs Coffey would pass a practical test. Mrs Coffey also obtained a report from an Ear, Nose and Throat specialist, which she provided to her employer, which confirmed that her hearing levels were stable. Nevertheless, the Acting Chief Inspector declined Mrs Coffey’s transfer application on the basis that her hearing was below the required standard.
The Tribunal found that the Acting Chief Inspector had presumed that Mrs Coffey’s hearing would deteriorate further in the future and that because of this, she wouldn’t be able to carry out the full range of front line duties. Norfolk Constabulary justified its decision on the basis that they had already retained officers who had become permanently restricted and who were no longer operationally deployable which increased pressure on operational officers.
Mrs Coffey claimed that she had been discriminated against because of a perceived disability, in other words, she said that Norfolk Constabulary believed she was disabled and for that reason, they declined her application to transfer.
Decision
Whilst it was common ground that Mrs Coffey’s condition did not constitute a disability under the EA 2010, the tribunal agreed that Mrs Coffey had been discriminated against as a result of a perceived disability and awarded her £26,616.05 in compensation.
Norfolk Constabulary unsuccessfully appealed to the EAT and then made a further appeal to the CA.
The CA upheld the previous decisions of the tribunal and the EAT.
What can be learned from the decision?
Employers should adopt a case by case approach, with proper consideration being given to the nature and effect of a condition on an individual. Employers should ensure that they obtain medical evidence relating to the individual’s condition and follow any recommendations of medical professionals rather than relying on their own assumptions.
Employers should also ensure that they are familiar with and conduct regular reviews of their internal policies. All too often policies and guidance are forgotten about, but these documents serve a valuable purpose and should be reviewed regularly, with decisions being made in accordance with them save in exceptional circumstances. One problem faced by Norfolk Constabulary was that it used the Recruitment Standards to justify its decision but had failed to read the accompanying Home Office Guidance. This confirmed that (a) it was unlawful to exclude candidates automatically on the basis of a medical condition or disability and (b) that the Recruitment Standards reflect fitness to serve at the time of appointment and for a reasonable time. There was no requirement that fitness to serve be assessed indefinitely. There was nothing to suggest that Ms Coffey was not adequately performing her duties at the time of her application and Norfolk Constabulary did not seem to have regard to this.
Whether this case causes a rise in the number of disability discrimination claims remains to be seen, but it is clear that employers should carefully monitor their internal and decision-making processes to mitigate the risk of being exposed to potentially costly tribunal claims in this area.
This bulletin is for general guidance purposes only and should not be used for any other purpose. Brabners is a Limited Liability Partnership
