Non-disabled employee wins disability discrimination claim

An employee whose health condition did not amount to a disability has won her disability discrimination claim against her employer.

The Employment Appeal Tribunal upheld an employment tribunal’s decision that a police office suffered disability discrimination when her application to be a front-line officer was rejected because her hearing fell marginally below the required standard.

Perceived disability

The significance of this case, Chief Constable of Norfolk v Coffey 2017, is that the claimant’s mild hearing loss did not satisfy the definition of disability within the meaning of the Equality Act 2010 and is one of the first examples of an employment tribunal finding that discrimination was on the grounds of ‘perceived disability’.

In this case the tribunal found that whilst Norfolk Constabulary did not think the police officer’s hearing loss would affect her role now, it thought wrongly, that it might do at some stage in the future. In other words, that the officer’s hearing would deteriorate.

The tribunal decided that Norfolk Constabulary rejected the officer’s application to avoid what it thought would be its obligation to make reasonable adjustments by placing her on restricted duties at some stage in the future.

As the definition of disability includes progressive conditions, Norfolk Constabulary had discriminated against the officer on the grounds of a perceived disability.

Significant to the decision were the facts that Norfolk Constabulary had received medical opinions, the first recommending a further hearing test and the second, considered the officer’s hearing had not deteriorated between tests in 2011 and 2013 and that she would pass a practical test.

Implications for employers

Employers need to take care about making assumptions about health conditions and their impact on an employee’s ability to work either now or in the future. We expect to see more claims that an employee has suffered less favourable treatment because of a disability to include as an alternative, claim because of a ‘perceived disability’.

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