Employment Law Case Update: Chief Constable of Norfolk v Coffey
Mrs Coffey was a police constable in Wiltshire Constabulary, who was refused a transfer to Norfolk Constabulary. She had some hearing loss placing her marginally outside the national standard for recruitment. However, following national guidance, the Wiltshire Constabulary arranged a practical functionality test for Mrs Coffey, which she passed, enabling her to work as a constable (without adjustments).
Mrs Coffey subsequently applied to transfer to the Norfolk Constabulary. She underwent a hearing test which recorded that she had the same level of hearing loss as previously identified by Wiltshire Constabulary. The Acting Chief Inspector (ACI) for Norfolk nevertheless rejected Mrs Coffey's application on the basis that her hearing was below the acceptable standard, and, despite medical advice, did not arrange a practical functionality test.
Mrs Coffey brought a claim to the Employment Tribunal alleging that the ACI perceived her as having a disability and that the decision to reject her application was direct disability discrimination. Mrs Coffey did not allege that she actually had a disability; her case was that her hearing loss did not have, and was not likely to have, a substantial adverse effect on her ability to carry out day-to-day activities, including working activities.
The ACI refuted the claims, explaining that she did not consider that Mrs Coffey was disabled under The Equality Act 2010. Instead she had rejected Mrs Coffey on the basis that the police force operates under significant cost and resourcing pressures, and she could not justify appointing someone who fell outside the national standards and therefore might not be fully operational.
Since this perception was the reason for refusing the transfer, the Tribunal upheld the claims. It found that the ACI perceived that Mrs Coffey had an actual or a potential disability which could lead to the Norfolk Constabulary having to make adjustments to her role, either now or in the future.
The Tribunal concluded that this amounted to direct discrimination. Norfolk Constabulary appealed to the EAT arguing that the Tribunal had been wrong in its finding that the ACI perceived Mrs Coffey to be disabled, and that she had been treated less favourably because of that perception. The EAT dismissed the appeal and finding the Tribunal’s reasoning to be sufficient; Norfolk Constabulary viewed Mrs Coffey as having a potential disability. In other words, even if the impairment was not perceived as currently having a substantial adverse effect, the perception was that it could well have a substantial effect in future.
This is the first case to directly address perceived disability discrimination under The Equality Act 2010. Though the EAT left the issue open, claims for perceived disability are not likely to apply to reasonable adjustment claims or discrimination arising from disability. The decision sets the benchmark as to whether the claimant was perceived as having the characteristics set out in the legal definition of disability.
This article is from our weekly Employment Law Newsletter published on 01/02/2018. If you would like to receive this newsletter directly and be kept up to date with recent cases and Employment Law news, email firstname.lastname@example.org.
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