This was the question addressed in the case of Chief Constable of Norfolk v Coffey. The applicant was a police officer who had a hearing impairment. She was looking to transfer from one police force to another but was rejected on the basis that they had concerns that her hearing would deteriorate in the future to such an extent that she would need to be placed on restricted duties. If her condition meant that she had a disability for the purposes of the Equality Act 2010, then obligations such as the need to make reasonable adjustments would come into play. Her transfer request was therefore rejected.
Ms Coffey claimed disability discrimination based on perception. She accepted she was not disabled at the time of the decision. She also did not believe that her condition was likely to deteriorate to such an extent that she would ever meet the criteria required to demonstrate that she was a disabled person for the purposes of the Equality Act. However, perception discrimination is not based on the individual’s assessment of their condition. It is based on the employer’s understanding of the impairment.
The Employment Appeal Tribunal concluded that the force had directly discriminated against Ms Coffey as they had rejected her transfer application on the basis that she would become disabled in the future. Dismissing an employee (or rejecting an application) before a person potentially becomes disabled to avoid becoming obligated to make reasonable adjustments to the role later on is discriminatory conduct. Even though it later transpired that she was unlikely to become disabled, her employer had worked on the basis that she may do so.
It is important to note that the law doesn’t just protect those individuals who are disabled but also seeks to protect those who others perceive as disabled or (as this case confirms) who are perceived as likely to become disabled in due course. The law can therefore protect non-disabled individuals where the employer incorrectly assumes that they have a progressive condition and takes preemptive steps to avoid having to deal with it by refusing to employ them. A subtle but important nuance of the discrimination provisions.
If you would like to discuss any of the issues raised in this article, we have specific employment law expertise in advising in this area. For further advice, please contact Angela Gorton, Partner in the firm’s award-winning Employment Team.
Please note this information is provided by way of example and may not be complete and is certainly not intended to constitute legal advice. You should take bespoke advice for your circumstances.