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Court of Appeal rules that an employer cannot base a career decision on a perception that an employee’s health may deteriorate

  • United Kingdom
  • Employment law

21-06-2019

Legal protection from disability discrimination includes perceived disability. In this case, the Court of Appeal has considered for the first time whether such protection extends to a perception that an individual has a progressive condition which is likely to result in a disability in the future. The Court has found that the law does extend this far and that, by refusing an employee a requested transfer because it feared her poor hearing would deteriorate and render her incapable in the role, the employer was guilty of perceived disability discrimination.

Background

On undergoing a pre-employment health check with the Police, Mrs Coffey discovered she had hearing loss and tinnitus slightly exceeding Home Office recommended recruitment guidelines for the Police. She was nonetheless appointed after successfully passing a practical test to assess the functional impact of her hearing loss. Two years later, PC Coffey needed to relocate for family reasons and applied for a transfer to a different constabulary. Further medical tests again revealed hearing loss outside Police standards but no sign of deterioration over the previous two years. However, her transfer request was declined on the basis of her failed health assessment. No practical test was offered on this occasion, despite being recommended by the health assessor.

PC Coffey brought a claim alleging that, as a non-disabled person, she had been directly discriminated against due to perceived disability. The Employment Tribunal upheld the claim. The constabulary accepted PC Coffey was not disabled. However, it argued that, as a frontline officer, she failed to meet the hearing standards of the role so that recruiting her risked adding to its growing pool of “restricted duty” officers; an increasing issue for the force in terms of both costs and resource. The tribunal concluded from this that the constabulary perceived PC Coffey as having a potential or actual disability which might give rise to future reasonable adjustments. It was accordingly found to have discriminated against her on that basis, a finding upheld on appeal to the EAT.

Today’s decision

Upholding the findings of the ET and EAT, the Court of Appeal confirmed that the appropriate legal definition of “disability” extends both to an individual perceived to be currently disabled and to those who are currently perceived to have a progressive condition likely to result in disability at some point in the future. As such, refusing employment because of a belief that an individual has a progressive condition that will deteriorate falls within disability discrimination.

Comment

This judgment makes it clear that, notwithstanding budgetary restrictions and increased demand for staff, employers must not turn down individuals for employment based upon unlawful “stereotypical” (per the Court) assumptions about an individual’s future ability which are used to curtail career opportunities. This reinforces the need to ensure that those involved in the recruitment process have been adequately trained in unconscious bias.

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