Does it amount to direct discrimination if an employer refuses a job to a non-disabled applicant because they believe that their condition could become a disability at a later date?
In the case of Chief Constable of Norfolk v Coffey, the Employment Appeal Tribunal (EAT) said yes.
Equality Act basics
Employers cannot discriminate on the basis of any of the ‘protected characteristics’ specified in the Equality Act 2010.
Disability is one of these nine protected characteristics. A worker will be considered disabled under the Equality Act if they can show that they suffer from a long term (i.e. 12 months or more) physical or mental impairment which has a substantial (i.e. more than trivial) effect on their ability to carry out day-to-day activities.
Someone who has a progressive condition, which are those that get worse as time progresses and is likely to have a substantial impact in the future, may also be classed disabled.
A prospective or actual employee is directly discriminated against by another person if they treat the individual less favourably than they treat others and this is because of a protected characteristic.
Direct discrimination covers discrimination by perception, where a person is treated less favourably because other people believe they have a protected characteristic, but in fact, they do not. For example, an employer rejects a job application from a white woman, because they think that she is black due to her African-sounding name. It is well established for many protected characteristics, but not for disability.
Background facts to the case
In 2009, Mrs Coffey applied to become a police constable. During a medical, it was found that she suffered from a hearing condition, which meant her hearing was slightly below the national medical standard for police recruitment.
A practical functionality test was arranged to assess her hearing, which she passed. She worked as an operating front-line police officer with no adverse effects from 2011 onwards.
In 2013, she asked to be transferred from Wiltshire to Norfolk. She revealed her hearing condition, provided the report from the functionality test and explained that no adjustments had been necessary.
She successfully passed the interview stage, subject to a fitness and pre-employment health assessment. The medical advisers stated that she was ‘just outside the standards for recruitment’, but as she had undertaken an operational policing role without any problems, they recommended an ‘at work test’. This recommendation was not taken up by the Norfolk Constabulary.
A second opinion was sought, which again stated that she was just outside range and that the 2011 and 2013 audiograms were very similar. It was concluded that there has been no deterioration of the employee’s hearing.
In spite of this, Acting Chief Inspector Hooper rejected Mrs Coffey’s application because her hearing did not comply with the medical standard. In an internal memorandum, she said ‘Whilst I acknowledge that she performs the role of frontline officer in Wiltshire the assessment of her hearing at the time she joined was “borderline”. The transfer of “risk” assessment & management of her ability to perform the role of frontline officer would become Norfolk Constabulary’s responsibility…’
As a result, Mrs Coffey lodged a claim of direct discrimination on the basis of perceived disability.
The Employment Tribunal’s ruling
Before the Employment Tribunal (ET), Acting Chief Inspector Hooper gave evidence. She said she ‘did not consider it appropriate to step outside the Medical Standards and recruit a non-disabled officer who would by virtue of the Medical Standards be a restricted officer’.
The ET said ‘given Acting Chief Inspector Hooper’s view that the Claimant had a potential disability or a perceived disability, the adjustments that Acting Chief Constable Hooper believed would have to be made was that the Claimant would become a restricted officer and thus a liability to the Force’.
They upheld the claim for direct discrimination and the decision was appealed.
The EAT’s decision
The EAT upheld the ET’s ruling, confirming that the definition of direct discrimination is sufficiently broad to cover cases of perceived discrimination. There is no distinction of the protected characteristic of disability and any other protected characteristic.
It stated ‘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’.
They found that in this case, Acting Chief Inspector Hooper’s evidence was only really explicable if she believed that Mrs Coffey’s condition could progress to such point her duties would need to be restricted. This was part of the reason why she did not agree to Mrs Coffey’s request to transfer.
Leaving the complex points of the case aside, the most important lesson for employers is to not jump to conclusions about applicants’ conditions.
Discrimination is a complex area; therefore seek legal advice to discuss your specific workplace challenges.