Disability discrimination:  Court of Appeal confirms that making assumptions about a medical condition can amount to direct discrimination because of a perceived disability 

The Court of Appeal has held that an employer's decision to refuse a job transfer request amounted to direct discrimination because it was based on a mistaken perception that the employee's mild hearing loss was a progressive condition under the Equality Act 2010 (Chief Constable of Norfolk and Lisa Coffey [2019] EWCA)

Background law

Under section 6 Equality Act 2010 (EA), a person has a disability if they have a physical or mental impairment, and the impairment has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities.

If a person has a progressive condition, as a result of which they have an impairment which has (or had) an effect on their ability to carry out normal day-to-day activities, but the effect is not (or was not) a substantial adverse effect, that person will be taken to have an impairment which has a substantial adverse effect if the condition is likely to result in them having such an impairment (paragraph 8, schedule 1 EA).

Direct disability discrimination occurs where, because of a disability, an employer treats a person less favourably than another (s.13 EA).  An act will also be caught by s.13 where an employer acts because he or she thinks that a person has a particular protected characteristic even if they in fact do not: this is generally labelled “perception discrimination”.  Direct discrimination of any form cannot be justified.  

Facts

Lisa Coffey (the Claimant) was a police officer in Wiltshire Constabulary.  She 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 2010 (EA).  In 2013, she applied for a transfer to Norfolk Constabulary (Norfolk), where she disclosed her hearing loss, alongside the results of a functionality test undertaken by Wiltshire Police which showed that she was able to perform her existing role. However, her application was rejected because her hearing fell “just outside the standards for recruitment” published by the Home Office.  Although the medical adviser recommended an "at-work test", this recommendation was not followed by Norfolk.

At the Employment Tribunal (Tribunal), the Claimant brought proceedings under EA, claiming that she had been discriminated against because of a perceived disability.  The Claimant's claim for direct discrimination by perception was upheld by an Employment Tribunal where she was awarded over £25,000 of compensation and the Tribunal made two recommendations.  Norfolk appealed to the Employment Appeal Tribunal (EAT) on liability, but the EAT dismissed the appeal.  Norfolk appealed to the Court of Appeal.

Court of Appeal 

At the Court of Appeal (CA), it was accepted by the parties that, for Norfolk to have discriminated by perception, Norfolk would have to "…believe that all the elements in the statutory definition of disability are present", although it was not necessary to attach the label of "disability" to them".   However, Norfolk argued that the Tribunal had failed to establish this, arguing that the Chief Constable's belief that the Claimant already was or might become incapable of performing front-line duties was a belief about her ability to carry out “normal day-to-day activities", when, in fact, the requirements of the role of a front-line police officer were exceptional in character and could not sensibly be treated as falling within that description.  

Although the CA accepted that some roles would require exceptional skills which were not “normal day-to-day activities” (such as those of a watchmaker or concert pianist, as referred to in the EA Guidance on matters to be taken into account in determining questions relating to the meaning of disability), they concluded that the job of a police-officer did not.  The CA agreed that the phrase must be "given an interpretation which encompasses the activities which are relevant to participation in professional life", noting only that perhaps "working life" might be a more appropriate substitution for "professional life".  Acknowledging that the role of a front-line police officer is in many respects unique and can be challenging and dangerous, the CA said that the “activities that it involves – at least those for which good hearing is relevant – are nevertheless for the purposes of the [EA] "normal day-to-day activities."  

The CA went on to refer to the Tribunal's evidential finding that the Chief Constable had a belief that, at some time in the future, the Claimant would be on restricted duties and unable to perform front-line duties.  As such, the CA agreed with the Tribunal that this made it clear that, at the time of the Claimant's transfer request, Norfolk believed the Claimant to have a progressive condition under EA.  The CA went on to confirm that the concept of perceived disability includes both: (a) an employee perceived to have a disability now; and (b) employees perceived to have a progressive condition which is likely to result in a disability in the future.  Ultimately, the CA dismissed Norfolk's appeal.

Comment

This is the first time that the CA has considered perceived discrimination under the EA and the decision provides useful guidance about when perceived disability may occur.  Key takeaways for employers are:

• It is unlawful to discriminate against someone because of a mistaken belief that they are disabled;  
• The CA has clarified that this does not require there to be a perception that the person is disabled as a matter of law, but only a belief that the person has an impairment with the features set out in within the legislation (such as whether the impairment is believed to be substantial and long-term);  
• The definition of disability under EA also includes deemed disabilities, past disabilities and progressive conditions (as in this case).  

Here, the CA found that Norfolk did not properly explore the facts before making "stereotypical assumptions" about the effects of the Claimant's hearing loss to come to a decision that her transfer application should be rejected.  It's possible that, had Norfolk taken a few extra steps to support their decision-making (such as to undertake an “at work” hearing test and obtain further medical evidence about whether the Claimant's hearing was going to deteriorate), the Claimant's claim would have been more likely to have been properly pleaded as a claim for discrimination arising from disability under s.15 EA regarding whether or not she could do the job.  This is significant because claims under s.15 EA can potentially be justified, whereas claims for direct discrimination cannot.  

Ultimately, the CA decided in this case that this was a direct discrimination claim because, on the facts, the Chief Constable had not acted on the basis of actual tasks that she believed the Claimant could not do, but was, instead, influenced by stereotypical assumptions about the effects of hearing loss.  These facts suggested that this was more likely a claim for direct discrimination, which cannot be justified.

Chief Constable of Norfolk v Coffey [2019] EWCA