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Is disability in the eye of the beholder?

Is disability in the eye of the beholder?

By Ben Smith  - 28 February 2018 

Chief Constable of Norfolk v Coffey UKEAT/0260/16

The Employment Appeal Tribunal (“EAT”) has given an interesting judgment on perceived discrimination. This is where a person, A, is discriminated against because they are perceived to have a protected characteristic which they do not in fact have. The EAT found that it was direct discrimination for a non-disabled job applicant to be rejected because of a perception that their condition could become a disability in the future

The claimant in this case, C, was a police constable with some “upper range” hearing loss. She was just below the threshold set by the police, but policy was that any borderline cases had to be assessed individually to determine if the hearing loss in practice affected the individual’s ability to perform front-line policing duties. C had been employed by Wiltshire Constabulary as a police constable on “front-line duty” without issue from 2011 to 2013. However, in 2013 she applied to transfer to Norfolk Constabulary. Her application was successful subject to a fitness and pre-employment health screening.

This screening noted the Claimant’s hearing loss and recommended she undergo an “at work” test. This was not accepted by Norfolk Constabulary. Further medical evidence procured by Norfolk Constabulary and the Claimant indicated that the Claimant’s hearing loss was stable, suggesting that she was – and would remain - capable of front-line duties.

The Claimant’s application came before Acting Chief Inspector Hooper, who rejected the application and expressly stating in an internal memo that this was based on her hearing loss, despite the fact she was currently undertaking front-line duties. In witness evidence before the Tribunal, Acting Chief Inspector Hooper stated that she did not believe the Claimant was disabled but nevertheless felt she was a “non-disabled permanently restricted officer” i.e. one who carried a risk that she might become incapable of front-line duties.

The EAT agreed with the Employment Tribunal’s assessment that had been direct discrimination on the basis of the Claimant’s perceived disability. Acting Chief Inspector Hooper had plainly perceived the Claimant as someone who might become disabled in the future and the EAT held that to allow an employer, B, to refuse to hire a person, A, because they perceived they might have to make reasonable accommodations for A in the future would create a gap in protection against discrimination. The correct hypothetical comparator for assessing if there had been unfavourable treatment was a person with the same condition as the Claimant whose condition was not perceived as likely to deteriorate to a level that would require they carry out restricted duties.