Tread carefully with employees who might become disabled
A recent case decided by the Employment Appeal Tribunal (EAT) concluded that an employer had unlawfully rejected a non-disabled job applicant because her condition could become a disability in the future. They found that she had suffered direct discrimination because the employer, the Norfolk constabulary, had treated her differently than they would someone else with her actual abilities because she was perceived to have a progressive hearing condition that would require her to be put on restricted duties.
The EAT in the case of Chief Constable of Norfolk v Coffey has upheld a finding of disability discrimination by perception and this clarifies that it is unlawful to reject a non-disabled job applicant because of a perception that a condition could become a disability in future.
The Police force rejected the officer’s request for a transfer from Wiltshire to the Norfolk Constabulary after assuming hearing loss would require future adjustments and that this would cause them problems.
The claimant, Lisa Coffey, brought a tribunal claim after being refused a transfer from Wiltshire to Norfolk Constabulary, as she did not meet the Police National Recruitment Standards because of a hearing condition.
She had previously served as a police constable in Norfolk from 1993 to 1997. She had not suffered from any hearing problems during that time. In 2009 she joined the Wiltshire Constabulary as a staff member and in 2011 applied to the Wiltshire Constabulary to return to become a police constable. As part of that process she had a medical test that showed that she suffered from bilateral mild sensori-neural hearing loss with tinnitus.
Wiltshire followed Police National Recruitment Standards guidance, arranging a practical functionality test, which she passed. Coffey then worked as a police constable on frontline duty with no adverse effects from 2011 onwards.
In 2013, she applied to transfer back to the Norfolk Constabulary. She disclosed that she had some upper-range hearing loss, enclosing the functionality test report showing that no adjustments had been required. That November, she was told she had been successful at the interview stage, subject to a fitness and pre-employment health assessment.
As part of that process, the medical adviser found she had significant hearing loss in both ears and was “just outside the standards for recruitment, strictly speaking” – but noted that she had undertaken an operational policing role with the Wiltshire Constabulary without any undue problems. It recommended her for a practical test.
Norfolk Constabulary, however, rejected the recommendation for a practical test, instead seeking further advice from a different medical adviser. In December, that adviser said that the 2011 and 2013 audiograms were similar – just outside the range – and concluded there had been no deterioration in Coffey’s hearing since 2011 and she would pass a practical test. Coffey also saw an ENT specialist, who confirmed that her hearing levels were stable and sent a copy of his report to the constabulary, but this was rejected.
Norfolk then rejected her transfer request without a function test because her hearing was just below the acceptable standard, based on concerns that she might end up on restricted duties should her hearing deteriorate.
The EAT found that the Norfolk Constabulary had treated her less favourably because of its perception that she was disabled. Norfolk decided that Coffey was a "non-disabled permanently restricted officer" and that financial restraints would mean greater pressure on operationally deployable officers. The EAT explained its decision by saying that, "There would be a gap in the protection offered by equality law if an employer, wrongly perceiving that an employee's impairment might well progress to the point where it affected his work substantially, could dismiss him in advance to avoid any duty to make allowances or adjustments."
This judgment means that the EAT will consider such decisions as direct disability discrimination and that employers should avoid drawing conclusions about disability where conditions exist.
Posted on 22 Jan 2018