The recent case of Chief Constable of Norfolk v Coffey is the first case to consider the availability of claims for perception discrimination under the Equality Act 2010 in the Court of Appeal.
Mrs Coffey was a police officer in the Wiltshire Constabulary who suffered from a degree of hearing loss, this had never caused her any problems in doing her job and so did not constitute a disability within the meaning of the Equality Act 2010.
Mrs Coffey later made an application to the Norfolk Constabulary which was accepted subject to a medical test. A medical advisor stated that Mrs Coffey had hearing loss ‘just outside the standards for recruitment strictly speaking’, he did however note that she was undertaking a police role without undue problems and recommended an ‘at-work’ hearing test. Mrs Coffey was not offered an individual assessment and her application was rejected. Mrs Coffey did not consider herself a disabled person and made a claim of discrimination on the basis of perceived disability.
The Equality Act 2010 is concerned with discrimination and harassment in respect of the following “protected characteristics”: age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation. All job applicants and employees have the right not to be unlawfully discriminated against on the grounds of a protected characteristic.
Under the Equality Act 2010, “discrimination arising from disability” occurs where both: A treats B unfavourably because of something arising in consequence of B’s disability, and A cannot show that the treatment is a proportionate means of achieving a legitimate aim.
Mrs Coffey’s claim succeeded before the Employment Tribunal and this was upheld by the Employment Appeal Tribunal. The Court of Appeal held that the perceived risk of future disability was established because there was a perception of a progressive condition which would meet the definition under the Equality Act 2010. Further, it was right in principle that an employer’s concern about the ability of a disabled employee to do the job could constitute direct discrimination if it was significantly influenced by a stereotypical assumption about the effects of the disability. It was clear in this case that the Norfolk Constabulary acted on the basis of stereotypical assumptions that Mrs Coffey’s hearing loss would render her incapable of performing front-line duties.
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