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05 August 2019

184: Refusing transfer due to a perception that an employee’s hearing might deteriorate amounted to disability discrimination

In Chief Constable of Norfolk v Coffey, the Court of Appeal has considered for the first time a claim based on perceived disability. It held that protection from disability discrimination under the Equality Act 2010 (Equality Act) extends to a perception that an individual has a progressive condition which is likely to result in a disability in the future. In this case, the (non-disabled) employee was refused a transfer within the police force because it was feared that her hearing loss would deteriorate to the extent that she would need to be on restricted duties.

Mrs Coffey worked for Wiltshire Constabulary as a police constable without any adjustments for her hearing loss, having passed a practical functionality test for the role. She applied for a transfer to Norfolk Constabulary. Further hearing tests showed hearing loss outside police standards, but with no sign of deterioration since her appointment by Wiltshire Constabulary. Her transfer application was refused, despite no practical tests being offered to her as recommended by the health assessor. Mrs Coffey brought a claim alleging that, as a non-disabled person, she had suffered direct discrimination on the grounds of perceived disability.

The Employment Tribunal upheld her claim. Norfolk Constabulary accepted that Mrs Coffey was not disabled. However, it argued that her transfer had been refused because her hearing loss could deteriorate, meaning that she might need to be placed in an increasing pool of restricted duty officers, which was a serious problem for the force in terms of costs and resources. The Tribunal concluded that Norfolk Constabulary perceived that Mrs Coffey had a potential disability which might give rise to the need for future reasonable adjustments. This decision was upheld by the Employment Appeal Tribunal (EAT).

The Court of Appeal has now also confirmed this reasoning. The definition of disability under the Equality Act extends to both an individual who is perceived to be disabled currently, and someone who is perceived to have a progressive condition which is likely to result in a disability in the future. Refusing Mrs Coffey a transfer on the basis that she had a progressive condition that would deteriorate therefore amounted to disability discrimination.

This is a useful decision which confirms that disability discrimination claims can be brought based on a perception of disability. It also highlights that employers must not make recruitment decisions based on stereotypical assumptions about an individual’s future ability to perform their job. In order to minimise the risk of similar claims, managers who are involved in the recruitment process should be properly trained to prevent all forms of disability discrimination and, in particular, to avoid unconscious bias.

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