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Perceived Disability - A Cautionary Tale

on Friday, 12 January 2018.

The recent Employment Appeals Tribunal (EAT) decision of Chief Constable of Norfolk v Coffey demonstrates how a non-disabled employee can succeed in a claim for discrimination because of a perceived disability.

In this case, the Claimant was a police officer with a hearing condition that meant that technically her hearing range was just outside the Home Office police recruitment criteria. However, in practical terms the Claimant's hearing condition had not impacted upon her ability to perform her full duties and was not considered a disability.

After two years' service she applied for a transfer to another force. Her transfer application was rejected on the basis that her existing condition could deteriorate in the future such that she might have to be placed on restricted duties. The Assistant Chief Inspector considered that the force could not accept the risk of increasing the pool of officers on restricted duties.

The Claimant brought a successful claim for direct discrimination. The Tribunal found that the decision to reject her application amounted to an act of direct discrimination based on perception. This was because their decision to reject her application was taken on the basis that her condition may develop into a disability in the future. She was therefore afforded protection under the Equality Act for disability discrimination by perception, despite not being disabled at the time of the claim.

The police force appealed unsuccessfully to the EAT. The EAT agreed that a person with the same abilities as the Claimant, whose condition the force did not consider likely to deteriorate in future, would have been treated differently. The EAT further noted that if employers could avoid a future obligation to make reasonable adjustments through dismissal before a perceived or actual condition developed into a disability in the future, then there would be an unacceptable gap in the protection that the EA 2010 offered.

Best Practice

This decision provides a useful reminder to employers to be alive to the risk of discrimination claims not only in respect of disabled employees, but also in respect of those with a condition falling short of a disability. In this case, whilst the Claimant had a hearing condition, a fair decision would have taken into account her ability to perform her full duties, and the advice of the pre-employment health assessment, which recommended an 'at work' test so that she could be observed in practice before a decision was taken on the transfer application.


For more information please contact Jessica Scott-Dye in our Employment Law team on 0117 314 5652.

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