Is it discrimination to reject a job applicant based on a perception that the condition may become a disability?

We reported in January 2018 last year about the case of The Chief Constable of Norfolk v. Coffey [2017] UKEAT,  where the Norfolk Constabulary was found by the Employment Appeal Tribunal 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. The case was appealed to the Court of Appeal which has upheld the finding of direct discrimination.

The Law
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.

The facts
Mrs Coffey was employed by the Wiltshire Constabulary and 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 were needed. 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. No individual assessment was considered and when the matter was placed before the Acting Chief Inspector Hooper, she declined Mrs Coffey’s transfer application saying that her hearing was below the recruitment standards.

Mrs Coffey brought a claim for direct disability discrimination against the Norfolk Constabulary. Although Mrs Coffey did not have a disability within the meaning of the Equality Act 2010 (her hearing loss did not affect her “normal day to day activities”), she brought a claim on the basis that the Constabulary treated her less favourably because of a perceived disability.

The Employment Tribunal held that the Constabulary perceived that Mrs Coffey had a disability or a potential disability and rejected her job application because of a concern that she may have to be placed on restricted duties in the future and would thereby become a liability to the force. The Tribunal found that this decision was directly discriminatory.
The Norfolk Constabulary appealed to the Employment Appeal Tribunal who rejected it. The Norfolk Constabulary appealed again to the Court of  Appeal.

The Decision
The Court of Appeal agreed with the Employment Appeal Tribunal and held that:

1.  The Constabulary had perceived that Mrs Coffey had a progressive condition that would have an effect on her ability to do “normal day to day activities” (one of the key components of the definition of disability) – the Court came to this conclusion because it was clear from evidence given by the Constabulary that they were concerned her hearing condition would, currently or in the future, render her incapable of performing front line duties such that she would have to be placed on restricted duties.
2. Refusing Mrs Coffey employment on the basis of a perception of a future inability to carry out her job was covered within the wide meaning of direct discrimination under the Equality Act 2010 – Mrs Coffey was perceived by the Constabulary to have a progressive condition under the Equality Act 2010.

Points to note
The way the Court of Appeal reached their decision sounds complex, but the outcome makes sense. It seems clear that if it hadn’t been for the wrong and discriminatory assumptions made by the Constabulary about her condition, Mrs Coffey probably would have been successful in her job application.

Action to Take

1. Ensure managers and decision makers do not make assumptions. This case demonstrates the danger for employers of making assumptions about an employee’s or 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.
2. Obtain medical advice and take into consideration any recommendations. This case also highlights the importance for employers of obtaining expert medical advice and carefully considering any recommendations made (rather than ignoring the advice of two medical experts which is what Norfolk Constabulary did in this case).

Case Reference
The Chief Constable of Norfolk v. Coffey [2019] – Court of Appeal

This article was written and researched by Miranda Amos, Solicitor at our Salisbury Office.  Miranda advises clients across Hampshire, Wiltshire and Nationwide.

 Miranda is the firms expert on maternity, pregnancy and parental rights. If you have any questions or concerns about the proposed changes or any issues in your business please do get in touch with Miranda directly!

Don’t forget getting advice from a Solicitor does not have to be complicated or costly!