Background
The basic concept of the law on disability discrimination will be clear to most: it is unlawful to treat someone less favourably due to them having a disability.
Of course, in practice, disability discrimination is a more complicated beast, and it is possible (and common) to fall foul of the law even with no intention to actually discriminate against someone.
The Equality Act 2010 has further muddied the waters in this regard, as it introduced two new protections against discrimination. It is now unlawful to treat someone less favourably if they are associated with someone who has certain protected characteristics (e.g. a Catholic family member), or if you perceive the person to have such a protected characteristic even if they don’t (e.g. you assume them to be gay when they are not).
It is the latter, namely discrimination by perception, which is the focus of this update.
The facts of the case
Ms Coffey was a police constable with the Norfolk Constabulary (NC) between 1993 and 1997, with no difficulties in relation to her hearing. In 2011 she applied to become a constable with the Wiltshire Constabulary (WC).
A medical test at that time found that she had some hearing loss and tinnitus. In response to this, WC asked her to undergo a practical functionality test, which she passed. Ms Coffey was then able to work as a constable with the WC and her hearing did not present any operational difficulties.
In 2013, Ms Coffey requested a return to the NC and told them that she was experiencing some hearing loss. Ms Coffey sent the NC the results of the practical test that she undertook with the WC, which stated that no adjustments were needed to allow her to work as a constable. Ms Coffey passed her interview, subject to further fitness and health tests.
Those tests showed that she had substantial hearing loss in both ears and that she was technically unfit to be recruited into a constable role. However, the test report also mentioned that she was already carrying out the role in Wiltshire with no apparent difficulty, and recommended a practical test as had happened when she applied to join the WC.
Instead of following that advice, the NC sought a second opinion from another medical professional. The results from that test agreed with the previous ones and noted that Ms Coffey’s hearing levels were no worse than they had been in 2011. Importantly, the second medical opinion was that she would pass a practical test, as she had done previously.
As well as undergoing the NC’s tests, Ms Coffey obtained her own specialist report, which concluded that her hearing was stable. That report was sent to the NC but was disregarded.
The NC then made the decision not to employ Ms Coffey, primarily on the basis that her hearing could deteriorate and result in her being unable to carry out all the functions of a constable role.
The ET and EAT’s decision
Both the Employment Tribunal (ET) and Employment Appeal Tribunal (EAT) found that discrimination had taken place. More specifically, the EAT upheld the ET’s decision that the NC had perceived Ms Coffey to be disabled (even though she was not) and had treated her less favourably as a result.
The finding of perceived disability largely centred on the fact that the NC considered that Ms Coffey’s condition could progress to the extent that she would have to be placed on restricted duties. If that were to happen, there would be a substantial adverse effect on her ability to carry out day-to-day activities, which would bring her squarely within the definition of a disabled person. As such, it could not accept NC’s stance that it did not perceive Ms Coffey to be disabled.
In relation to the latter point, the refusal to employ her was clearly less favourable treatment.
What does this mean?
In essence, this case does not represent a paradigm shift in disability discrimination law. However, it does highlight the inherent danger of making assumptions about a condition, and how difficult it is to argue against having perceived something if you have made decisions based on those assumptions.
The case has also been useful in highlighting the EAT’s interpretation of the spirit of disability discrimination law. In its judgement, the EAT stated:
“There would be a gap in the protection offered by equality law if an employer, wrongly perceiving that an employee’s impairment might well progress to the point where it affected his work substantially, could dismiss him in advance to avoid any duty to make allowances or adjustments.”
In other words, it is likely to be unlawful to try to avoid any future requirement for adjustments by making a decision not to employ (or to dismiss) someone not requiring those adjustments now.
There are also some clear flaws in how the NC dealt with the information that it had. It was provided with three medical reports that acknowledged some hearing loss but considered the applicant fit for the role. Ignoring those reports and drawing its own conclusions was never going to be a safe move. While a medical report is not the only document to base a decision on, employers are generally expected to give them due consideration, which did not happen here.
If you have any questions on any of the issues raised in the above article, please contact Seanpaul McCahill.