Opinion

An employee without a disability successfully claims disability discrimination

27th August 2019

An employee without a disability successfully claims disability discrimination

A police constable whose transfer request was rejected due to her employer’s mistaken perception that she had a progressive condition has successfully brought a disability discrimination claim against her employer.

Ms Coffey worked as a police constable and was based in Wiltshire. Due to family circumstances, Ms Coffey requested to transfer to the Norfolk Constabulary. Ms Coffey’s transfer request was rejected on the basis that her hearing was below the medical standard required and the Norfolk Constabulary did not want to have another police officer with restricted duties.

Ms Coffey suffered with minor hearing loss and had not met the required medical standards when she was recruited for her role in Wiltshire. However the medical standards are not decisive so she was successful in her application. This led to the question of whether the “disabled” definition for a disability discrimination claim had been satisfied.

To satisfy the legal test for disability, there must be an impairment which has a substantial and long-term adverse effect on a person’s ability to carry out normal day-to-day activities. Both parties accepted that her medical condition did not currently have a substantial adverse effect on her ability to perform her role.

A progressive condition, where a minor impairment is likely to have a substantial adverse effect in the future, also satisfies the legal test for a disability. The Court of Appeal held the Norfolk Constabulary thought that Ms Coffey’s hearing loss was a progressive condition as it would cause her to be placed on restricted duties in the future. However, Ms Coffey’s condition was not progressive.

The Court of Appeal held that this mistaken perception that Ms Coffey was disabled was still enough to lead to a successful disability discrimination claim even though the legal test for “disability” had not been satisfied. This decision was based on the fact that Norfolk Constabulary thought that Ms Coffey’s condition had the features required in the legal test, rather than whether the legal test had actually been met.

Employer Considerations

Employers should be mindful of possible discrimination issues arising from their own mistaken beliefs in relation to an employee’s medical condition. Even if the legal definition for disability is not satisfied, a discrimination claim could still be successful. To avoid this, employers should keep an open dialogue with the individual to gain a full understanding of the condition and consider whether an occupational health assessment would be of use rather than making assumptions which could lead to a visit to the Employment Tribunal.

 

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