Can a non-disabled employee who is perceived to be disabled by their employer, bring a claim for direct discrimination? Yes, confirms the EAT

In the case of Chief Constable of Norfolk v Coffey UKEAT/0260/16, the EAT upheld the Employment Tribunal’s decision that an employer had directly discriminated against an employee because of a perceived disability. Whilst the principle of perceived disability has been established for some time, this is the first case to directly address the point, confirming that such claims are permissible and can be brought as direct discrimination claims under the Equality Act 2010 (the Act).

In this case, Mrs Coffey was a police constable in Wiltshire. She suffered hearing loss which placed her marginally outside national standards for the police. However, the Wiltshire Constabulary arranged a function test for her which she passed, enabling her to work as a constable without any adjustments. Mrs Coffey subsequently applied to transfer to the Norfolk Constabulary. Her hearing test results remained the same, but no function test was arranged and her application was rejected by the Acting Chief Inspector (ACI) on the basis that she did not meet the national standards and therefore may end up on restricted duties at some point in the future, should her hearing deteriorate.

Mrs Coffey brought proceedings in the Employment Tribunal on the basis that the ACI perceived her as having a disability and therefore that the decision to reject her application was direct disability discrimination.

The Tribunal found that:

• deciding whether someone perceives another as disabled requires analysis of whether they perceived that person to have an impairment which meets the definition of disability in the Act: i.e. whether they have an impairment that has had or is likely to have a substantial and long term adverse impact on that person’s ability to carry out day to day activities;
• in line with European case law, the phrase “normal day to day activities” must be given an interpretation that encompasses the activities that are relevant to participation in professional life; and
• a person will be deemed to have an impairment that has a substantial adverse effect on their normal day to day activities if they suffer from a progressive condition.

Therefore, the Tribunal found that the ACI’s defence that the reason Mrs Coffey was not appointed was because at some point in the future she may not be able to fully carry out the duties of her employment, clearly pointed towards a perception that she was or might at some point in the future be, disabled as defined in the Act. The EAT upheld the Tribunal’s decision, noting that a person with the same abilities as Mrs Coffey, whose condition the ACI did not perceive to be likely to deteriorate such that they may require restricted duties in the future, would not have been treated in the same way.

This case is a reminder to employers that they should not make presumptions about the effect of employees’ ill health/impairments on their ability to carry out their duties and doing so may lead to an implied admission that the employee’s ill health has a substantial adverse impact on their ability to carry out day to day activities. The focus should be on what employees can do and decisions based around what employees may be unable to do should be based on sound medical advice and an objective test of the employees capability in the context of their role.

If you have any further questions regarding this topic or any employment issues, please contact Emma Sangeelee – Senior Associate, or any member of the Edwin Coe Employment Team.

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