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Court Of Appeal Confirms The Equality Act Covers ‘Perceived Disability’ Discrimination

Employment Law Expert Discusses Practical Implications Of Ruling

02.07.2019

David Shirt, Press Officer | 0161 838 3094

The Court of Appeal case of The Chief Constable of Norfolk v Coffey [2019] EWCA Civ 1061 reaffirms the earlier decisions of the Courts below it, namely that: it may be unlawful disability discrimination to refuse an individual employment on the basis that there is a risk that they may be unable to work in a particular role in future.

The Facts

The Claimant was employed by the Norfolk Constabulary as a police constable. In 2011 after a career break and position change, she reapplied to the Wiltshire Constabulary to become a police constable. Undergoing a medical, it was discovered that the Claimant suffers from ‘bilateral mild sensorineural’ hearing loss with tinnitus. Despite this, she was seen to be fit and able to work as a constable. In 2013 the Claimant reapplied for a role as police constable in the Norfolk Constabulary. This application was denied despite medical clarification that overall, the Claimant had not suffered much deterioration in her hearing since 2011. The Claimant took her case to the Employment Tribunal arguing that the decision not to hire her constituted direct perception discrimination on the basis of disability.

The Findings of the Employment Tribunal (ET) and Employment Appeal Tribunal (EAT)

The ET decided that the Respondent had perceived that the Claimant had a potential or actual disability, which could lead to the Respondent having to make adjustments to the Claimant’s role as a front-line police officer. Accordingly, unlawful discrimination on the basis of a perceived disability prevailed on the facts. The EAT subsequently dismissed the Respondent’s appeal of the ET decision, and affirmed that section 13 of the Equality Act 2010 is wide enough to encompass perceived discrimination.

The case before the Court of Appeal

The key question was whether the ET erred in law. The Court of Appeal ruled that it had not, and decided this in relation to the three grounds of appeal:

The Respondent having thought that the Claimant was already, or might become incapable of performing front-line duties:

(1) fulfilled the statutory definition of ‘disability’. The Respondent argued that the duties of a front-line officer are ‘highly specialised’ and do not concern the ability for the Claimant to carry out ‘normal day-to-day activities’ (as required by the definition of ‘disability’ under section (6) of the Equality Act 2010). The Court did not agree, and ruled that ‘normal day-to-day activities’ include activities relevant to participation in ‘professional life’ more broadly. 

(2) fulfilled the definition of ‘progressive impairments’ under schedule 1, section 8(1)(a) of the Equality Act 2010.

(3) reaffirmed that the case fell within section 13(1) of the Equality Act 2010, considering that the Respondent was influenced in her decision by a ‘stereotypical assumption about the effects of what she perceived to be the Claimant’s actual or future hearing loss’.  Moreover, cases where it is certain that the discrimination in question is ‘perceived’ rather than actual, may not need to be considered under section 15 of the act – this requires evidence that the person is, at the relevant moment,  actually disabled. Therefore, those accused of perceived disability discrimination may not be able to alleviate liability with the justification defence under subsection 1(b) of section 15; it establishes that any claim of discrimination will not be upheld if it can be proven that the treatment which is said be discriminatory, was a proportionate means of achieving a legitimate aim.

Discussing the practical implications, Shah Qureshi, Head of the Employment and Professional Discipline department at the London office, said:

Expert Opinion
"This case is the first of its kind to establish that section 13 is capable of encompassing perceived disability discrimination i.e. discrimination which occurs on the basis of a mistaken belief that the person in question is disabled."
Shah Qureshi, Partner