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Perceived Disability Discrimination

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Employment Law & HR
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Note: this article was first written by our colleagues at Solve HR, before Solve HR joined Law At Work in March 2020. We have imported this...

Appeal court upholds claim of (direct) discrimination, claimant was awarded £26,616 because she was perceived to have a disability. It serves as a reminder not to make judgements or assumptions. The case of Chief Constable of Norfolk v Coffey earlier this year resulted in a key ruling by the appeal court as they upheld a claim of (direct) discrimination because the claimant (Cofey) was perceived to have a disability. The court confirmed that it is discriminatory to refuse employment because of a perception that a health condition will affect a person's ability to work in future. Lisa Coffey was a police officer in Wiltshire Constabulary and suffered from a degree of hearing loss and tinnitus which did not affect her ability to do her job and was not considered a disability under the Equality Act. In 2013 she applied for a transfer to Norfolk Constabulary. She disclosed the hearing loss and the results of a functionality test that showed she was able to perform her existing role. However, the constabulary rejected her application because her hearing fell '"just outside the standards for recruitment'" published by the Home Office. The constabulary was concerned that the hearing loss would have a substantial impact on Coffey's ability to perform day-to-day activities in future. Coffey did not consider herself a disabled person so brought a claim of discrimination on the basis that the force had treated her less favourably because it perceived she had a disability. In 2016 her claim for direct disability discrimination was upheld by an employment tribunal. It found that Norfolk Constabulary had not followed Home Office advice to conduct an individual assessment of Coffey's ability and had not acted on a recommendation from a medical adviser about the need for an at-work test. The tribunal found that she had been unlawfully discriminated against on the grounds of '"perceived'" disability and was awarded £26,616.05 in compensation. Norfolk Constabulary challenged the decision at the Employment Appeal Tribunal, which agreed with the previous judgment that the constabulary had been wrong to reject Coffey's application for a transfer on the basis she would have been unable to perform her role In future. The Court of Appeal upheld both decisions. In a judgment published in the summer of this year it said there was no evidence that front-line police officers needed to have particularly acute hearing. The court agreed that it was unlawful to deny Coffey a role at Norfolk Constabulary, as she had been able to perform her daily duties without problems in Wiltshire. The court rejected suggestions raised in evidence that front-line duties in Norfolk were somehow different to those in Wiltshire. It also found that Norfolk had failed to take into account the highly material Home Office standard and accompanying circular and guidance. The court stated that whether or not an employer has directly discriminated against a person will not depend on whether it perceives that person to be disabled as a matter of law. It therefore does not depend on knowledge of disability discrimination law but on whether the employer perceived that person '"to have an impairment with the features which are set out in the legislation'". Coffey continues to work for Wiltshire Constabulary. This case serves as a reminder to employers to be wary of making judgements or assumptions about workers, for example thinking that someone who has problems with depression or anxiety might not be up to the challenge of a stressful job. People who are unsuccessful in applications for jobs and promotions and might be unable to say with confidence that they are currently disabled, should still not suffer a detriment or less favourable treatment because an employer or prospective employer perceives that they are. For further advice and support on this matter speak to a member of the Solve. team

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