THE FACTS
Mrs Coffey is a police officer in the Wiltshire Constabulary. At the time of her recruitment, her hearing was slightly below the national standard required for police. However, she passed a practical functionality test, she was recruited, and her hearing has never caused her any problems in doing her job.
Mrs Coffey applied to transfer to the Norfolk Constabulary. She was open about her hearing problems, and medical tests and advice confirmed that her hearing levels were stable. Despite this, her application for a transfer was rejected because of her hearing. Acting Chief Inspector Hooper explained in the subsequent tribunal claim that, given the need for the police to provide services with fewer officers, there was a concern about recruiting a non-disabled officer who would be restricted in duties as this would reduce the pool of officers who are operationally deployable.
Mrs Coffey brought a direct discrimination claim against the Chief Constable of the Norfolk Constabulary. She did not claim to have a disability, but that she had been treated less favourably because she was perceived to have a disability. This perceived disability, she claimed, was a progressive condition that could well develop to the point of having a substantial impact on her ability to carry out day to day activities. Her claim was successful and she was awarded £26,616.05 and the tribunal made recommendations.
Norfolk appealed to the EAT, which dismissed the appeal. Norfolk then appealed to the Court of Appeal.
In a claim of perceived disability, the alleged discriminator must believe that all the elements in the statutory definition of disability are met, though it is not necessary that they should attach the label "disability" to them. Norfolk argued that the tribunal's findings about ACI Hooper's thought processes could not support a conclusion that ACI Hooper believed that all the elements of the definition of "disability" had been met. The requirements of the role of a frontline police officer were exceptional, according to Norfolk, and could not be said to be "normal day to day activities" (an element of the statutory definition of disability). However, the court disagreed with this: there had been no evidence that front-line police officers needed particularly acute hearing. The activities for which good hearing were relevant were therefore normal day to day activities, meeting that element of the statutory definition. Norfolk also argued that it had not been open to the tribunal, on the evidence, to find that ACI Hooper believed Mrs Coffey was, at the date of her application, unable to operate as a front-line officer. The Court of Appeal agreed with this, finding that ACI Hooper's evidence had focussed on what might happen in the future: she did not believe that Mrs Coffey had an actual disability. However, the tribunal had found that ACI Hooper had believed that Mrs Coffey's impairment might, at some time in the future, have the result that she would be unable to perform the role of a front-line officer. The court considered that the tribunal was entitled to find that this had been ACI Hooper's belief: at the time of her decision to reject the request for a transfer, ACI Hooper perceived Mrs Coffey to be suffering from a progressive condition that met the statutory definition of disability.
Norfolk also argued that Mrs Coffey's case was not actually a complaint of direct disability discrimination but a complaint of discrimination arising from a disability. The Court of Appeal rejected this argument. An employer's concern about the ability of someone to do the job may constitute direct discrimination if it is significantly influenced by a stereotypical assumption about the effects of the disability. In this case, ACI Hooper was influenced in her decision by a stereotypical assumption about the effects of what she perceived to be Mrs Coffey's (actual or future) hearing loss. Claims of direct discrimination cannot generally be brought in cases where an employee suffers a detriment because they are (or are perceived to be) unable to do the work required as a result of a disability. Without stereotypical assumption relevant here, these cases would have to be brought as cases of discrimination arising from a disability, meaning that the employer could put forward justification arguments.
WHAT DOES THIS MEAN FOR EMPLOYERS?
This was the first case to directly address perceived disability discrimination under the Equality Act and it confirms that claims based on a perception of disability are permissible. It also demonstrates the dangers of making assumptions about an employee's health particularly where an employee may have a progressive condition.
Chief Constable of Norfolk v Coffey [2019] EWCA Civ 1061 (21 June 2019)
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