Discrimination in Recruitment
Yes, according to the case of The Chief Constable of Norfolk v. Coffey  UKEAT, where the Norfolk Constabulary was found to have directly discriminated against a non-disabled job applicant by not offering her a job because they perceived her condition could become a disability in the future.
Under the Equality Act 2010, 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. Progressive conditions are protected under the Act if the condition is likely to result in an impairment that has a substantial adverse effect on normal day to day activities.
Direct discrimination is defined under section 13 of the Equality Act 2010 as occurring when a person, (A), treats another, (B), less favourably than they treat or would treat others because of a protected characteristic – disability being one such characteristic. However, the definition of direct discrimination does not require that B actually has the protected characteristic. It is wide enough to include discrimination on the basis that a person is perceived to have that characteristic.
Mrs Coffey was initially employed by the Wiltshire Constabulary as a staff member but in 2011 she applied to become a police constable. When she underwent a medical, it was discovered she suffered from mild hearing loss.
Although her hearing loss fell below the medical standards for police recruitment, the standard was not decisive and the guidance was that all candidates who did not meet the medical standard should be looked at individually and assessed in terms of their ability based on the functions of the role of a constable. Mrs Coffey went on to pass a practical functionality test and worked as a full operational police constable from 2011 onwards.
In 2013, Mrs Coffey applied to Norfolk Constabulary for a transfer and told them that she had some hearing loss but that no adjustments had been needed because of this. She was successful at the interview stage but at the medical assessment, it was found again that she had significant hearing loss in both ears. The medical adviser noted she had been working as a police constable on the front line with no problems since 2011 and recommended she undertake an “at-work” test. However, Norfolk Constabulary did not accept this. They sought another medical opinion, which said much the same thing – her hearing had not deteriorated and she was capable of performing the job. Still however, the Norfolk Constabulary did not accept the recommendation and when the matter was placed before Acting Chief Inspector Hooper, she declined Mrs Coffey’s application saying that her hearing was below the recruitment standards. No individual assessment was considered.
Mrs Coffey brought a claim for direct disability discrimination against the Constabulary on the basis of perceived disability. She did not allege that she actually had a disability but that her hearing loss did not have, and was not likely to have, a substantial adverse effect on her ability to carry out day to day activities.
The Employment Tribunal upheld Mrs Coffey’s disability discrimination claim. The Tribunal found that ACI Hooper did perceive that Mrs Coffey had a disability or a potential disability and rejected her job application because of a concern that Mrs Coffey may have to be placed on restricted duties in the future and become a liability to the force. The Tribunal found that this decision was directly discriminatory. The Norfolk Constabulary appealed.
The Employment Appeal Tribunal rejected the appeal. The EAT said the Tribunal was correct to find that ACI Hooper perceived Mrs Coffey to have a disability because it was clear from ACI Hooper’s evidence that she thought Mrs Coffey’s condition could progress to the point that she would have to be placed on restricted duties. Indeed, this risk was part of the reason why Mrs Coffey’s application was unsuccessful. The EAT also rejected the argument that this was not a case of direct discrimination. The EAT said the Tribunal was entitled to conclude that, if you compared Mrs Coffey’s treatment to a person who was not perceived to be disabled (i.e. whose condition was not perceived as likely to deteriorate so that they would require restricted duties and who had the abilities which Mrs Coffey had), that person would not have been treated as Mrs Coffey was treated.
Points to Note
This case demonstrates the danger for employers of making assumptions about an employee’s (or, as in this case, a job applicant’s) health condition and how the condition may progress. Ill-founded or, worse, stereo-typical assumptions about disability, perceived or otherwise, could lead to accusations of direct discrimination. It also highlights the importance for employers of obtaining expert medical advice and carefully considering any recommendations made – ignoring the advice of not one but two medical experts proved to be the downfall of Norfolk Constabulary in this case.
Action to Take
1. If you have any doubt about an employee or applicants medical condition then it is important to get medical advice, and follow it.
2. You should ensure that anyone in your organisation who is making decisions about recruitment and/or promotion is aware of the requirements of the Equality Act and has some training on equal opportunities.
3. If in doubt get specific legal advice about the situation. .
Don’t forget getting advice from a Solicitor does not have to be complicated or costly!
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