Discrimination because of perceived disability

Introduction

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.

Legal principles

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.

Facts

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.

Claim

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.

Issue

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.

Decision

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 [2019] EWCA Civ 1061

Warning: this news item is not a substitute for legal advice. The information may be incorrect or out of date and does not constitute a definitive or complete statement of the law. This news item is not intended to constitute legal advice in any specific situation. Readers should obtain legal advice and not rely on the information in this article.