In the matter of Chief Constable of Norfolk v. Coffey, the Employment Appeal Tribunal (EAT) held that if an employer perceives an employee to have a disability and that employee is disadvantaged as a result it is discrimination even if the employee is not, in fact, disabled.
This matter has now gone to the Court of Appeal (available here), and the EAT’s decision has been upheld.
The background to the case is that Lisa Coffey was a police constable with some hearing loss. She tested just slightly below the hearing level normally required for police recruitment, but it was marginal and her performance in other tests was sufficient for her to be recruited anyway. Importantly, her hearing was not poor enough for her to meet the legal definition of disability.
Similar tests were carried out when she applied to transfer to the Norfolk Constabulary, and the medical examiner advised that since she was already an active officer and her hearing levels were stable she should have an at-work test. Rather than follow that advice, Norfolk Constabulary declined the transfer. It justified the decision on the grounds that her hearing tested below required levels and, should it deteriorate, it did not need any more officers on restricted duties.
Ms Coffey brought a Tribunal claim for discrimination, arguing that Norfolk Constabulary’s expressed concern that she would end up on restricted duties demonstrated perception of a progressive condition as a disability even thought it did not presently meet the legal definition.
The Tribunal upheld the claim, so Norfolk Constabulary appealed to the EAT. The EAT upheld the Tribunal’s finding, explaining that had Ms Coffey’s condition deteriorated sufficiently to see her placed on restricted duties she would, by then, meet the legal qualification for disability. Therefore, she was being treated unfavourably on the basis of a perceived disability without currently being disabled. Norfolk Constabulary took the matter to the Court of Appeal.
The Court of Appeal once again upheld Ms Coffey’s claim, ruling that there was indeed a perception of disability based on stereotypical assumptions about hearing loss.
This decision is the first of its type and expands the scope for direct discrimination claims. It demonstrates the danger for an employer in making any decision detrimental to an employee based on an assumption of what might happen at some future date. It is not an acceptable defence to argue that the employee has a condition that could develop to the point of disability if a medical examiner’s recommendation is that they are presently fit for duty.
