In The Chief Constable of Norfolk v Coffey the Court of Appeal has considered the issue of perceived disability discrimination for the first time. It upheld earlier tribunal and EAT decisions that it was direct disability discrimination to refuse a police constable's transfer request because she had a hearing impairment. Even though the impairment did not amount to a disability under the Equality Act, the police force perceived that she had a progressive condition that would become a disability in the future.
Mrs Coffey did not meet the police force's normal recruitment standards because of a hearing impairment. However, she was appointed as a police constable following a "real life" hearing assessment that showed she was capable of performing all an officer's normal duties. For personal reasons, she later applied for a transfer to the Norfolk police force but her request was turned down because she could not satisfy the recruitment standards. She claimed that this was perceived disability discrimination; it was common ground that she was not disabled for the purposes of the Equality Act when she made her transfer request.
The Court of Appeal upheld her claim. Someone can be discriminated against because they are perceived to have a protected characteristic, even if they do not. In this case the Norfolk police force perceived that Mrs Coffey had a progressive condition that was likely to have a substantial adverse impact on her ability to carry out normal day to day activities, including the duties of a police constable, in the future, even though her hearing impairment was stable. It rejected her transfer application as a result.
Once the Court had determined that Mrs Coffey was perceived to be disabled, the second issue was whether the rejection of her transfer request was direct disability discrimination. The employer gave evidence that it refused the request because it was worried that she would not be able to perform front-line duties in the future. It argued that this was discrimination "arising from" a disability, which does not extend to perceived disabilities. The Court of Appeal disagreed. Rejecting an application because of concerns about a candidate's ability to perform the functions of a role will often be properly characterised as discrimination "arising from" a disability. However, in this case the employer's concern was based on stereotypical assumptions about the impact of the hearing impairment. As such it was a case of direct discrimination because of a perceived disability.
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