Was it unlawful disability discrimination to refuse employment because of a perception of a risk of future inability to work in a particular role?
Yes, held the Court of Appeal in Chief Constable of Norfolk v Coffey.
Lisa Coffey was a police officer in the Wiltshire Constabulary. She suffered from a degree of hearing loss which had never caused her any problems in doing her job and so did not constitute a disability within the meaning of the Equality Act 2010. She was able to do her 'normal day-to-day activities'. In 2013 she applied for a transfer to the Norfolk Constabulary, but it was refused because, on a medical test, her hearing fell, as the medical adviser put it, "just outside the standards for recruitment, strictly speaking".
She brought a disability discrimination claim, asserting that she had been discriminated against because of a (perceived) disability. Perception discrimination is where A acts because he or she thinks that B has a particular protected characteristic even if they in fact do not. Her claim succeeded before a tribunal and this was upheld by the EAT.
The EAT said that the phrase 'normal day-to-day activities' should be given "an interpretation which encompasses the activities which are relevant to participation in professional life". Norfolk's belief that Ms Coffey's hearing loss would, currently or in the future, render her unable to perform the duties of a front-line police officer was a perception that it would have an effect on her ability to carry out normal day-to-day activities.The Court of Appeal agreed.
The remaining question was whether to refuse employment because of a perception of a risk of future inability to work as a front-line officer fell within the terms of the Act.
The Court of Appeal held it did. If a Claimant is perceived to have a progressive condition he or she is to be treated as disabled within the meaning of the Equality Act. Once it is accepted that perception discrimination falls within the terms of section 13 of the Act there was no rational basis for holding that it applies to some forms of discrimination and not others. It was unnecessary to consider whether the EU Framework Directive 2000/78/EC covers such a case. The UK primary legislation did.
Thanks to Dr John McMullen of Stone King LLP for preparing this case summary.