Is it discriminatory to refuse employment to someone because of a perception that their health condition will affect their ability to work in future?
Yes, according to the Court of Appeal in Chief Constable of Norfolk v Coffey which upheld an employment tribunal’s decision that it is unlawful to discriminate against a person because of a mistaken perception that they have a condition which will make them unable to perform their role in future.
You don’t always have to have a disability to be directly discriminated against for it. If you are treated unfavourably because others believe you have a disability, when in fact you don’t, this is discrimination on the basis of perceived disability.
The Claimant was a police constable in Wiltshire Constabulary and had minor hearing loss which did not affect her ability to do her job. Despite this, her application to transfer to Norfolk Constabulary was turned down. Although there was no evidence that the Claimant’s hearing loss would get worse, Norfolk Constabulary thought it might and that she might, in future, be unable to perform her role of police constable.
The Claimant, who did not regard herself as disabled, brought a claim in the Employment Tribunal that Norfolk Constabulary’s rejection of her transfer request constituted discrimination on the basis of a perceived disability.
At the hearing, it was accepted by both parties that the Claimant’s hearing loss did not affect her abilities, so the question was whether she was “disabled” and so able to bring a claim for disability discrimination.
The ET upheld the Claimant’s claim that she had been discriminated against because of a perceived disability. The Court of Appeal dismissed an appeal by Norfolk Constabulary.
Chief Constable of Norfolk v Coffey  EWCA Civ 1061
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