UK: Disability discrimination – discrimination based on a perceived disability is unlawful
In the first case of its kind, the EAT has upheld a claim for direct discrimination based on perceived disability.
Ms Coffey was a Police Constable. She had some hearing loss which was just above the national standards for hearing loss for the police. Following national guidance, her employer arranged a practical functionality test which she passed, enabling her to work as a police constable. Ms Coffey subsequently applied to transfer to the Norfolk Constabulary. She underwent another hearing test, which found the same level of hearing loss as previously identified. However, her application was rejected without a practical functionality test being carried out. Ms Coffey brought a direct disability discrimination claim.
The evidence showed that the reason Ms Coffey’s transfer application was rejected was because Norfolk Constabulary perceived that she had a disability in the form of a progressive condition that could progress to the point where she would need to be put on restricted duties. They would not have rejected an applicant who was not perceived as having a progressive condition.
In some respects the decision in this case is not surprising as we already know that discrimination based on perception of other protected characteristics is unlawful, such as discrimination on the basis of someone’s perceived sexual orientation. However, it is useful clarification that the same applies in the context of disability discrimination and as an illustration of how the tribunal will approach this issue. It also serves as a reminder of the need for employers to avoid making assumptions about a health condition, which may lead to a claim for direct disability discrimination.
Chief Constable of Norfolk v Coffey UKEAT/0260/16.