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Perceived disability claim upheld

Napthens - January 31st 2018

Disability is a protected characteristic under the Equality Act 2010 and as such an employee, or potential employee, should not be discriminated against due to their disability. It is generally understood that a claim for disability discrimination can be brought where an employee does not have a disability, but the alleged discriminator perceives them to have a disability. The EAT shone light on such a scenario in the recent case of Chief Constabulary of Norfolk v Coffey. 

Mrs Coffey was a police constable in Wiltshire Constabulary. Upon Mrs Coffey joining the force in 2011 she was subject to a medical test, which revealed that she suffered from hearing loss. The level of her hearing loss put her outside of the standards for recruiting. However, Wiltshire police force arranged a practical functionality test, which she passed successfully before joining the team.

In 2013, Mrs Coffey applied to join Norfolk Constabulary. Having been successful at the interview stage, she was subject to a pre-employment health assessment. Again the test reported that she had hearing loss, and notably it concluded that it hadn’t deteriorated since her earlier test in 2011. She had successfully undertaken an operational role within Wiltshire Constabulary without any problems, therefore she was recommended for a practical test.

Conversely, this was rejected by Norfolk Constabulary who requested further advice from a different medical advisor. Again, the advisor noted that her hearing levels were stable and didn’t show any signs of deterioration and suggested that she would pass a practical test. Further, Mrs Coffey obtained a report from an ENT specialist who confirmed that her hearing levels were indeed stable and showed no sign of deterioration. The report was subsequently sent to Norfolk Constabulary, who later rejected it.

Mrs Coffey was rejected by Norfolk Constabulary on the basis that her hearing was just below the required standard and that they had concerns that, should it deteriorate, she would end up working on restrictive duties.

The EAT found that the Acting Chief Inspector in perceiving that her condition would worsen had therefore perceived that she had a disability in the sense of a progressive condition, even though she wasn’t actually disabled.

This was the first case to deal with perceived disability discrimination under the Equality Act. Employers should be aware of the risk in believing that a person’s condition could potentially worsen to the extent that it becomes a disability. Best practice in such a scenario would be to view each case on its merits and to consider whether they are in fact disabled. Where an employee is considered to be disabled employers should ensure that they consider whether any reasonable adjustments can be made. However, if like in this scenario, they are not disabled, consideration should be made so as to not jump to conclusions. Further, like Wiltshire Constabulary did when questions had been raised, employers should consider requesting expert evidence and should consider whether their suggestions are reasonable.

Should you need advice on this matter or would like assistance with managing your recruitment process, then please don’t hesitate to contact a member of the team.