Court of Appeal upholds claim of perceived disability discrimination against police force08/07/19
In the first case of perceptive discrimination to come before the Court of Appeal (CA), the Chief Constable of Norfolk v Coffey, the CA has upheld the decision of the Employment Appeal Tribunal (EAT) that a police officer was discriminated against when she was refused a transfer to the Norfolk Constabulary because of a perceived disability.
Under section 6 of the Equality Act 2010 (the Act), a person (P) has a disability if:
- P has a physical or mental impairment, and
- the impairment has a substantial and long-term adverse effect on P’s ability to carry out normal day-to-day activities.”
In a claim of perceived disability discrimination, the putative discriminator must believe that all the elements of the above definition are met.
The Claimant was a former officer of Wiltshire Police. She suffered from a degree of hearing loss which had never caused her any problems in doing her job.
In 2013, she applied for a transfer to the Norfolk Constabulary but her application was refused because, on a medical test, her hearing fell just outside the Medical Standards for Police Recruitment set down by the Home Office. The Assistant Chief Inspector who considered her application determined that it would not be appropriate to deviate from these standards, given the risk of increasing the pool of officers on restricted duties, despite the fact that the standards were not decisive and Home Office guidance made clear that where the standards were not met, candidates should be considered on an individual basis.
The Claimant brought a claim for direct discrimination contrary to the Act, on the basis that she had not been offered the transfer because the Norfolk Constabulary perceived that her hearing loss amounted to a disability under the Act.
The Employment Tribunal found that the Claimant had been discriminated against because of a perceived disability, and the EAT dismissed Norfolk Constabulary’s appeal. The Constabulary appealed to the Court of Appeal.
Court of Appeal decision
The CA upheld the EAT’s decision, holding that the Claimant had been directly discriminated against because of her perceived disability.
Definition of disability
The Respondent argued that the duties of a front line police officer were specialised activities and did not constitute “normal day to day activities”, and accordingly the definition of discrimination was not met. The CA disagreed, however, holding that there was no evidence that front line police officers were required to have particularly acute hearing or to hear “a fly’s footfall”. Although their work is in many respects unique and is often challenging, a police officer’s duties should nevertheless be viewed as “normal day to day activities”.
There was no dispute that the Claimant did not actually have a disability at the time the Assistant Chief Inspector refused her application. She argued that the Respondent had refused to employ her because it had a perception that she may be unable to work as a front line officer at some point in the future and this was sufficient to attract the protection of the Act. The CA agreed with the Claimant’s argument. At the time it refused to employ her, the Respondent perceived that the Claimant had a progressive condition which could well develop to the point of having a substantial impact on her ability to carry out day-to-day activities. Accordingly, the Claimant’s claim for disability discrimination succeeded.
What to take away
This is the first case to consider perceptive disability discrimination at an appellate level. The CA’s decision highlights that, although the definition of disability under the Act is a strict one, claimants will be able to make out a case of perceived discrimination where they do not meet the test, provided that the employer believes that all elements of the definition are met, and even where the employer does not necessarily use the label “disability”. Employers should always be alive to the possibility of disability and consider how any issues should be dealt with.
For further information on how this decision might affect your organisation, please contact Paul McFarlane, Andrew Uttley or Raj Chahal.