It is unlawful to refuse employment because of a perceived risk of a future inability to work in a particular role, the Court of Appeal has ruled.
The case, Chief Constable of Norfolk v Coffey, concerned the transfer of police officer Lisa Coffey from Wiltshire Constabulary to Norfolk Constabulary, and whether her hearing loss was being treated as a perceived disability.
Writing in Daniel Barnett’s Employment Law Bulletin, Dr John McMullen, Partner at Stone King LLP, explained that Coffey had a degree of hearing loss, but it had not caused her any problems with her job and did not constitute a disability under the Equality Act 2010. She was able to carry out her normal day-to-day activities.
However, her request to transfer to Norfolk Constabulary was refused because of her hearing. A medical adviser for the force said that her hearing fell “just outside the standards for recruitment, strictly speaking”.
Coffey bought a disability discrimination claim, asserting that she had been discriminated against for a perceived disability.
“Perception discrimination is where A acts because he or she thinks that B has a particular protected characteristic even if they in fact do not,” explained McMullen.
The claim succeeded through tribunal and was upheld by an employment appeal tribunal (EAT).
The Court of Appeal also agreed with the EAT. Norfolk’s belief that Coffey’s hearing loss would, now or in the future, render her unable to perform her duties was a perception that it would have an effect on her ability to carry out normal day-to-day activities and thus impact her duties.
The remain issue was whether to refuse employment because of the perceived risk of a future inability to work fell within terms of the Equality Act. The Court of Appeal held that it did.
“If a claimant is perceived to have a progressive condition he or she is to be treated as disabled within the meaning of the Equality Act,” wrote McMullen. “Once it is accepted that perception discrimination falls within the terms of section 13 of the Act there was no rational basis for holding that it applies to some forms of discrimination and not others.”
