Perceived discrimination arises where the discrimination is not based on an actual disability, but where the employer mistakenly perceives there to be a disability. The Court of Appeal has recently ruled that it is unlawful disability discrimination to refuse employment because of a perception of a risk of future inability to work in a particular role.
Lisa Coffey was a police officer in Wiltshire Constabulary. She suffered from some hearing loss and tinnitus. The condition did not affect her ability to do her job and was not considered a disability under the Equality Act.
A few years later she applied for a transfer to Norfolk Constabulary in 2013. She was open about her hearing loss and the results of a test which showed she was able to perform her existing role.
But Norfolk Constabulary believed that Ms Coffey’s hearing loss would make her unable to perform front-line police officer duties and rejected her application, saying her hearing fell “just outside the standards for recruitment” published by the Home Office.
The employer’s concern that the hearing loss would have a substantial impact on Coffey’s ability to perform day-to-day activities in future was perception.
Ms Coffey brought a successful claim of discrimination on the basis that the force had treated her less favourably because it perceived she had a disability. The tribunal found that Norfolk Constabulary had not followed Home Office advice to conduct an individual assessment of Ms 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.
On appeal, her claim was upheld by the EAT, who said that whether an employer has directly discriminated against a person will not depend on whether it perceives that person to be disabled as a matter of law. It therefore does not depend on knowledge of disability discrimination law but on whether the employer perceived that person “to have an impairment with the features which are set out in the legislation”.
Now the Court of Appeal has upheld both decisions. It said there was no evidence that front-line police officers needed to have particularly acute hearing. It was unlawful to deny Ms Coffey a role at Norfolk Constabulary, as she had been able to perform her daily duties without problems in Wiltshire.
This decision should remind employers to avoid making assumptions and get proper advice when making judgements about workers’ health conditions. For example, in a situation where someone who has problems with depression or anxiety don’t assume that they might not be up to the challenge of a stressful job.
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Although every effort has been made to ensure the accuracy of the information contained in this blog, nothing herein should be construed as giving advice and no responsibility will be taken for inaccuracies or errors.
Copyright © 2019 all rights reserved. You may copy or distribute this blog as long as this copyright notice and full information about contacting the author are attached. The author is Kate Russell of Russell HR Consulting Ltd.
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