...but also those with a condition falling short of disability.
We reported on the case of Chief Constable of Norfolk v Coffey in January 2018 (please click here for the full article). Police officer Lisa Coffey suffered from a degree of hearing loss which did not impact her day-to-day life. Her hearing was technically, however, just outside the range set in the Home Office police recruitment criteria. The Chief Constable of Norfolk (CCN), was of the view that her condition may deteriorate in the future and consequently refused her request that she transfer from Wiltshire Constabulary to Norfolk Constabulary.
Ms Coffey successfully brought a claim for direct discrimination against the CCN, claiming that she had been discriminated against by the CCN on the grounds of a perceived disability. The Employment Tribunal held that the decision to reject her application was based on the perception that her condition may develop into a disability in the future which could result in CCN being required to make adjustments now or in the future. Even though she was not disabled, the Tribunal found that she was able to bring a claim of direct discrimination under the Equality Act 2010 (EqA 2010).
The CCN appealed to the Employment Appeal Tribunal (EAT) who rejected their appeal, upholding the Tribunal's decision.
The CCN appealed to the Court of Appeal, arguing that a perception of risk to future work is not sufficient to allow someone to bring a claim under the EqA 2010.
The Court of Appeal rejected the appeal and agreed with the EAT that, if employers were able to mitigate the need to make reasonable adjustments for people in the future for conditions that may worsen, that would lead to an unacceptable gap in the protection that the EqA 2010 offers. The Court of Appeal found that an employer's concern about the ability of a disabled claimant to perform a role may amount to direct discrimination if that concern is significantly influenced by a stereotypical assumption of the impact of the disability.
Once again, employers are reminded to be alert to the risk of a direct discrimination claim even in circumstances where the employee may not meet the definition of a disabled person under the EqA 2010. Employers should be very careful about considering what the future consequences of an employee's condition may be, when making decisions relating to their employment. Claimants whose employers perceive them to have a protected characteristic will also be protected against direct discrimination.