The Court of Appeal has ruled that it is discriminatory to refuse employment because of a perception that a health condition will affect an employee’s ability to work in future.
C, a police officer, suffered from mild hearing loss. Her condition had not caused her any problems in her job – she was able to do her ‘normal day-to-day activities’ – so it did not constitute a disability. She applied to transfer to another police force but was not accepted because a pre-employment health assessment showed her hearing was just outside the standards for recruitment and there was a concern about recruiting an officer who they feared would in the future be restricted in the duties she could carry out, as this would reduce the pool of officers who were operationally deployable.
C brought a direct discrimination claim on the basis that:
- she was treated less favourably because she was perceived to have a disability
- this perceived disability was a progressive condition that was likely to have a substantial impact on her ability to carry out normal day-to-day activities in the future.
The Court of Appeal noted that the police were influenced by stereotypical assumptions about the effects of hearing loss. It said the police’s perception of a risk that she would not be able to work in the future indicated she was perceived to have a disability in the form of a progressive condition.
This Court of Appeal decision is the first to consider whether direct discrimination covers less favourable treatment based on a perceived protected characteristic. The Court said it did, and that such a claim does not depend on whether the employee is presumed to be disabled as a matter of law – but whether they are perceived to have an impairment which is likely to have a substantial effect on their ability to carry out normal day-to-day activities in the future.
This decision confirms that claims can be brought based on a perception of disability.
This case highlights the dangers of making assumptions about an employee’s health when making decisions relating to their employment, particularly where the employee has or could develop a progressive condition. Instead, employers should base their decisions on medical advice on the employee’s condition.
Chief Constable of Norfolk v Coffey http://www.bailii.org/ew/cases/EWCA/Civ/2019/1061.html