PERCEIVED DISABILITY AND THE DANGERS OF MAKING ASSUMPTIONS ABOUT THE ACTUAL OR POTENTIAL ABILITIES OF OTHERS IN AN EMPLOYMENT CONTEXT

The recent Employment Appeal Tribunal (EAT) case of Chief Constable of Norfolk v Coffey should serve as a salutary reminder to employers and potential employers of the need to base decision making on sound and non-discriminatory grounds rather than on stereotypical assumptions about what activities in the workplace a person can or cannot do both currently and in the future. This case involved a serving police constable, PC Coffey, who wished to transfer to another constabulary. In order to do this, she had to undergo an interview process which included a medical assessment. She declared that she had some hearing impairments which took her below the acceptable standard of hearing which the police force uses as a guide. However, previous medical assessments had advised that in practice this did not prevent her from carrying out her duties effectively and in practice, it had not proved to be a problem. The circular accompanying the guide issued to the police force stressed the need for individual assessment in each case. The medical assessment for the transfer application took the same view and stated that her condition was stable and there had been no deterioration and that the hearing impairment had not placed any restriction on her ability to perform her front-line police duties effectively. Despite this, her application for the transfer was refused on the grounds of her ‘sub-standard’ hearing. The police constable won her claim for disability discrimination in the employment tribunal and the Norfolk Constabulary appealed to the EAT. The main issue to be decided by the EAT was limited to whether there had been direct disability discrimination by the Chief Constable of Norfolk on the grounds of her decision not to allow PC Coffey to transfer to Norfolk which had been based on her perception of PC Coffey’s hearing condition. Direct discrimination under the Equality Act 2010 occurs when one person (A) treats another person (B) less favourably because that person has a disability. Direct discrimination cannot be justified. The EAT confirmed that the wording of the Equality Act 2010 prohibits direct discrimination where in fact, B has no disability but A perceives him or her to have a disability. The Chief Constable argued that she did not perceive PC Coffey to have had a disability and was careful to refer to her as a ‘non-disabled officer’ but one who may, in the future have ‘non-disabled’ restrictions placed on her operational abilities because of her hearing impairment. The EAT was not persuaded by this. It concluded that without any medical evidence on which to base her decision, the Chief Constable’s stated objections to the transfer of PC Coffey into the Norfolk Constabulary were clearly based on her perception that PC Coffey would, at some future date, have a degree of hearing impairment that would restrict her abilities to carry out frontline operational duties. The Chief Constable may not have realised that her perception of PC Coffey’s condition and the restrictions she believed it would place on PC Coffey’s ability to carry out frontline duties in the future would result in that perceived condition satisfying the legal definition of disability but that was beside the point. By rejecting the transfer application she treated PC Coffey less favourably because she perceived the application to have a condition that the law would have deemed a disability. The Chief Constable argued that any decision that there had been direct discrimination would mean that employers could not impose a requirement for a standard of performance without being exposed to the risk of a claim for direct discrimination. The EAT rejected that argument. It pointed out that if an employer had genuine performance standards and a disabled person did not have the ability to meet those standards because of something arising from his or her disability, any resulting unfavourable treatment afforded the disabled person would not be direct discrimination. Discrimination because of something arising from a disability is a distinct and different form of unlawful discrimination and unlike direct discrimination can be justified if the unfavourable treatment is a proportionate means of achieving a legitimate aim. The EAT was keen to point out however that the justification defence would not protect an employer who wrongly perceives a person to lack an ability which that person actually has. There may be scope for argument between employment lawyers as to whether the form of unlawful discrimination was correctly identified in this case and whether this case was correctly decided but this case highlights the risks to employers of making assumptions about the abilities of disabled people and of asking questions about a person’s health at the recruitment which serve no purpose other than to identify whether the applicant has any physical or mental impairment. The Equality Act 2010 protects people who are discriminated against for a variety of ‘personal characteristics’ including disability. While some might see this as imposing an unnecessary and burdensome restriction on the scope for making sound business decisions, employers who understand and comply with their legal obligations under the Equality Act stand a much better chance of making good business decisions and of significantly reducing the risk of having to defend a discrimination claim in the employment tribunals.

Equality Act guidance

If you think you may need some help and guidance on a particular Equality Act issue or generally, contact either of our employment law solicitors, Justin Lewars on 01308 459739 or Heather Cowan on 01308 459743 or call our central office on 01308 459459, or contact us online and we can discuss how Essential Employment Law Services Ltd may be able to help you.