The Chief Constable of Norfolk v Coffey UKEAT/0260/16/BA; December 19, 2017
Introduction
The appeal concerned whether the ET erred in finding that the appellant perceived the respondent to be disabled and treated her less favourably because of this.
Facts
In 2011 Coffey (C) successfully applied to become a police constable with the Wiltshire Constabulary. As part of the application process, C underwent a medical examination which found that she suffers from bilateral mild sensory-neural hearing loss with tinnitus. In September 2013, C made a transfer application to the Norfolk Constabulary (N) in which she disclosed that she suffered from upper range hearing loss.
On November 19, 2013 C was informed she had been successful at interview stage, subject to a fitness and pre-employment health assessment. The medical advisor stated that C had significant hearing loss in both ears and was ‘just outside the standards for recruitment strictly speaking’ and recommended an ‘at work test’.
N still did not accept a recommendation that C would pass an ‘at work test’ despite results showing there had been no deterioration in her condition between 2011 and 2013. Acting Chief Inspector Hooper (H) was the decision-maker.
Employment Tribunal
C claimed perceived disability direct discrimination; she did not allege she had a disability.
H gave evidence that she declined C’s transfer application because her hearing did not meet the published medical standards, but she did not regard C as disabled. However H did regard C as, at least potentially, a ‘non-disabled permanently restricted officer’. In an internal memo H wrote ‘regrettably the applicant’s hearing is below the acceptable and recognised standard and we should decline the application to transfer’.
The ET found that H’s comments in the internal memo could only be interpreted as H perceiving C to have a potential or actual disability. Accordingly the ET upheld C’s claim for perceived disability direct discrimination and recommended her rejection to be expunged from N’s records.
Employment Appeal Tribunal
The appellant’s arguments
N appealed the ET’s decision on the following grounds.
Firstly, N submitted that the ET had failed to identify or use the correct test in determining whether H considered C met the definition of disability. If the ET had applied the s6 EA test it would have found that H did not perceive C’s hearing loss to amount to a disability. It is not enough that a putative discriminator may have perceived that C could become disabled at some date in the future.
Secondly, s23(2) EA states that a person’s abilities are relevant to the comparator question in the context of direct disability discrimination. N submitted that the ET erred in considering C’s case to be one of direct discrimination at all as, if A treats B, whom they perceive to be disabled, the same way they would treat a non-disabled person with the same abilities, they are not guilty of direct discrimination.
Thirdly, N submitted that the ET erred in finding the refusal of the application was because of perceived disability, when in fact it was because she did not meet the prescribed standards. This might give rise to a claim under s15 EA but such treatment can be justified. The ET’s decision would also cause problems for organisations which must apply a required standard.
The respondent’s arguments
C submitted that the ET applied the correct test and the finding that H perceived C to be disabled either by virtue of her current abilities or a progressive condition was sufficient to make out her claim of perceived direct discrimination.
Secondly, C submitted that the ET had the correct comparison in mind which took account of C’s abilities, and C had, and would continue to have, the required abilities notwithstanding being a borderline failure on the recruitment standard. The comparison should omit H’s false assessment of C’s abilities. Alternatively C submitted no comparator was needed as H was trying to avoid the statutory duty to make reasonable adjustments.
Thirdly, C submitted that the ET did not err in law in concluding that the refusal of the application was due to the perceived disability. H believed C would become a liability to N because of false and prejudicial assumptions about her abilities. If C was actually disabled then the ET might properly have found direct disability discrimination.
C also did not accept that the ET’s decision would render it difficult for organisations to apply a required standard. If the individual lacked an ability which was a requirement of the job this would be the reason for the treatment, and s13 EA would not be engaged. S15 EA might be engaged but organisations can justify such treatment.
The judgment
The EAT, HHJ Richardson presiding, preferred C’s submission that H perceived her to be disabled, either now or in the future, as defined by the EA. If this was not the case, it would leave a gap in equality law if an employer could dismiss an employee in advance to avoid a duty to make allowances or adjustments.
This was a case of direct discrimination. A genuine difference in abilities may well be a material difference for the purposes of s23 EA but this was not relevant here. Even if an individual does lack the ability in question, and is rejected for that reason, they may have a remedy under s15 EA and an employer may be able to justify the treatment. However s23(2)(a) EA doesn’t assist an employer where the individual has the required ability but is nevertheless rejected because of the employer’s flawed belief in their lack of ability … ‘a stereotypical and incorrect assumption that a claimant has characteristics associated with a disability may found a claim for direct discrimination’.
The EA contains proper provisions for removing from the ambit of direct discrimination those cases which are really concerned with the application of a performance standard to a person who lacks a relevant ability.
The ET made no error of law in its reasoning. The correct focus was on whether H perceived C to have an impairment as defined in the EA. The ET was entitled to find that H did perceive C to have a disability as H’s decision was at least in part tainted by her mistaken belief that C could well have a progressive condition.
N’s appeal was rejected.
Implications for practitioners
This case is useful to claimants who are perceived to be disabled and are discriminated against but whose condition does not meet the statutory definition of a disability. The EAT approved a comprehensive approach for the ET when investigating the state of mind of a putative discriminator. Practitioners should be mindful to advise decision-makers to assess a candidate’s abilities as they are, and not as they perceive them to be or perceive them to become at some future date.
This article was first published on DLA.