The Court of Appeal has held in Chief Constable of Norfolk v Coffey that it is direct discrimination if a non-disabled job applicant is rejected because of a perception that a condition could become a disability in the future.
A police officer was turned down for a transfer to the Norfolk Constabulary because her hearing loss was marginally below the medical standard for police recruitment. When she had joined the Wiltshire Constabulary she attended a medical at which it was discovered that she had a degree of hearing loss which would usually have disqualified her from recruitment, but she was accepted after passing a practical functionality test. When she applied for a transfer to the Norfolk Constabulary she was turned down because her hearing was below the acceptable standard and that it was considered by the Assistant Chief Constable that it would not be appropriate to step outside that standard given the risk of increasing the pool of officers on restricted duties.
The police officer brought a claim for direct discrimination, arguing that she had been treated less favourably because she was perceived to have a disability, in the form of a progressive condition that could well develop to the point of having a substantial impact on her ability to carry out day-to-day activities. The tribunal found that she had been discriminated against and that she had been treated less favourably than a hypothetical comparator whose condition was not perceived to be likely to deteriorate so that he or she would require restricted duties. The Employment Appeal Tribunal (EAT) agreed.
The Court of Appeal upheld the decision of both tribunals. The claimant had performed an active policing role in Wiltshire and her transfer had been rejected when the Assistant Chief Constable decided not to employ the claimant on the basis that she believed that the claimant would become a liability to the force.
Take note: Following the decision in Coffey employers should ensure that they do not jump the gun by assuming that a potential employee's impairment may progress and end up having a substantial impact on their work. Deciding not to employ someone on the basis of a wrongful perception in order to avoid have to make reasonable adjustments will amount to direct discrimination irrespective of whether the individual suffers from a disability (which they did not in this case) or not.
This article is taken from HR Law – July 2019
