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Perception of disability gave rise to discrimination

View profile for Emily Yeardley
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The Court of Appeal has handed down its first judgment in a case concerning disability discrimination by perception.

In the case of Chief Constable of Norfolk v Coffey, Coffey, a police officer, brought proceedings against the Chief Constable of Norfolk claiming that she had been discriminated against because of a perceived disability. She argued that the refusal to transfer her to the Norfolk Constabulary was less favourable treatment because of a perceived disability.  

At the time of the Employment Tribunal hearing, Coffey had worked as a police constable on front-line duty since 2011 with no adverse effects, and continued to do so. Coffey did not consider herself to be disabled within the meaning of the Equality Act 2010.

Following her application for a transfer to Norfolk Constabulary on 26 September 2013, she underwent a medical assessment. The results were that she suffered with bilateral mild sensorineural hearing loss with tinnitus. The National Recruitment Standards, which included medical standards for police recruitment, made clear that where candidates did not meet the medical standard, their case should be looked at individually to consider their ability based on the role, functions and activities. Coffey underwent a functionality test which she passed. She disclosed the report from the functionality test with her application for a transfer.

Coffey was successful at interview, subject to a fitness and pre-employment assessment. The medical adviser for Norfolk Constabulary stated that she had significant hearing loss in both ears and was ‘just outside the standards for recruitment strictly speaking’ but noted that she had carried out her role without issue and recommended an ‘at-work test’. Norfolk Constabulary did not accept this recommendation and instead it sought advice from another medical adviser. That medical adviser confirmed there had been no deterioration since 2011 and that she would pass a practical test. Chief Inspector Hooper considered the application and the additional medical evidence which Coffey had obtained from her ear, nose and throat specialist, but still declined the application. Hooper had not taken into account a circular from the Home Office which provided for an individual assessment to take place where candidates fell short of the hearing standard.

Coffey’s claim of disability discrimination by perception was upheld by the Employment Tribunal. The Chief Constable of Norfolk appealed the decision to the Employment Appeal Tribunal (EAT). The EAT dismissed the appeal.

Hooper argued that she did not consider Coffey to be disabled but referred to her in witness evidence as a ‘non-disabled permanently restricted officer’. As a result, the tribunal concluded that in the absence of any other explanation, she had been treated less favourably because of a perceived disability. The Court of Appeal upheld the Employment Tribunal and the EAT’s decision.

If you would like to discuss any of the issues in this case, please do not hesitate to contact Emily Yeardley

This article is not a definitive statement of the law. It is designed as a free update on the law at the time of publishing. It is not a substitute for legal advice on specific facts and circumstances. BakerLaw LLP and/or the writer accepts no liability or responsibility for reliance on this article and recommends that you seek independent legal advice on your specific circumstances prior to taking any steps.

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