It is discriminatory to refuse employment because of a perception that a health condition will affect a person’s ability to work in future, the Court of Appeal has confirmed.
Lisa Coffey was a police officer in Wiltshire Constabulary and suffered from a degree of hearing loss and tinnitus which did not affect her ability to do her job and was not considered a disability under the Equality Act.
Disability discrimination
Sharp rise in disability discrimination claims at tribunals
Discrimination arising from disability: questions remain about “unfavourable treatment”
In 2013 she applied for a transfer to Norfolk Constabulary. She disclosed the hearing loss and the results of a functionality test that showed she was able to perform her existing role. However, the constabulary rejected her application because her hearing fell “just outside the standards for recruitment” published by the Home Office. The constabulary was concerned that the hearing loss would have a substantial impact on Coffey’s ability to perform day-to-day activities in future.
In 2016 she took her claim for direct disability discrimination to an employment tribunal. It found that Norfolk Constabulary had not followed Home Office advice to conduct an individual assessment of Coffey’s ability and had not acted on a recommendation from a medical adviser about the need for an at-work test.
She was awarded £26,616.05 in compensation because, found the tribunal, she had been unlawfully discriminated against on the grounds of “perceived” disability.
Norfolk Constabulary challenged the decision at the Employment Appeal Tribunal, which agreed with the previous judgment that the constabulary had been wrong to reject Coffey’s application for a transfer on the basis she would have been unable to perform her role In future.
The Court of Appeal upheld both decisions. In a judgment published last week, it said there was no evidence that front-line police officers needed to have particularly acute hearing.
Lord Justice Nicholas Underhill said in the decision: “There will be occasions in the course of their duties when it is important that they be able to listen carefully or hear particular sounds (even if not a fly’s footfall), but that is characteristic of many situations both at work and outside it.”
Lord Justice Nigel Davis agreed that it was unlawful to deny Coffey a role at Norfolk Constabulary, as she had been able to perform her daily duties without problems in Wiltshire.
He said: “The claimant had performed entirely satisfactorily in a front-line role in the Wiltshire Constabulary. The (unparticularised) suggestion raised in evidence that front-line duties in Norfolk were somehow different from those in Wiltshire was half-baked and properly rejected by the employment tribunal.
“Furthermore, and in particular, in reaching her decision of 1 April 2014, ACI Hooper [the person who had rejected Coffey’s application] had failed to take into account the highly material Home Office standard and accompanying circular and guidance.”
Sign up to our weekly round-up of HR news and guidance
Receive the Personnel Today Direct e-newsletter every Wednesday
Coffey continues to work for Wiltshire Constabulary.
