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Legal Corner: Police officer discriminated against for perceived disability

26th Jan 2018

Disability discrimination is often a tricky issue at work. A lot of the time, issues arise due to perceptions about a disabled person or their restrictions. But what if the perception is about whether they have, or might develop, a disability itself? This was the rather unusual issue that arose in Coffey v The Chief Constable of Norfolk [2017] EKEAT_0260_16_1912.

Ms Coffey was a serving police constable with Wiltshire Police. She had a partial hearing loss, slightly higher than that set out in the Medical Standards for Police Recruitment by the Home Office. However, according to the Medical Standard, if the result was borderline, then a practical test should be undertaken which assessed functionality.

Wiltshire Police undertook such a test which she passed; she, therefore, worked as a police constable from 2011 onwards with no adverse effect.

In 2013, Ms Coffey wished to move to Norfolk for family reasons. She, therefore, applied for a transfer to Norfolk Police. She disclosed her hearing issues and a copy of the functional assessment. She made clear that she had not had any issues, and that no adjustments had been necessary to her work. Ms Coffey was successful at interview, subject to a health assessment.

The medical advisor noted her hearing issues, as well as her work history, and advised that an ‘at-work’ test be carried out. However, this recommendation was not followed by Norfolk Police who sought another medical advisor’s guidance.

They confirmed that Ms Coffey’s hearing was just outside the Medical Standard, but that the results from 2011 and 2013 were very similar, such that it did not appear that Ms Coffey’s condition was deteriorating. Her Consultant ENT specialist also confirmed this. Norfolk Constabulary decided not to progress Ms Coffey’s application.

That decision was taken by Acting Chief Inspector Hooper, who decided that since Ms Coffey’s hearing was outside the Medical Standard, Norfolk Police would have to accept the transfer of ‘risk’ such that her application should be declined.

Ms Coffey brought claims in the employment tribunal alleging that she had been directly discriminated against on the basis of a ‘perceived’ disability. She clearly accepted that she was not disabled at that time; her hearing loss did not have and was not likely to have, a substantial adverse effect on her ability to carry out day-to-day activities, including working activities.

However, she argued that she had been treated less favourably because of Norfolk Police’s perception of her hearing loss. The tribunal heard from ACI Hooper. She said that she understood that Ms Coffey was not disabled, and did not think that she was. However, it was clear from her evidence that she regarded Ms Coffey as a potentially being a ‘non-disabled but permanently restricted officer’.

ACI Hooper made reference to the fact that Norfolk Police was able to employ fewer officers to provide the same service, a position that was set to continue. Where officers were restricted, this put pressure on the rest of the workforce. Given those pressures, she did not feel that it was appropriate to knowingly increase the pool of restricted officers, or those likely to become restricted. Therefore, she considered that it would only be reasonable to recruit someone like Ms Coffey if they had specific skills that Norfolk Police could utilise.

The Employment Tribunal, with whom the Employment Appeal Tribunal later agreed, had no real difficulty in deciding that Ms Coffey had been treated less favourably because of a perception that her hearing loss might result in her becoming restricted in her duties as a police constable or other adjustments being required. That, under the Equality Act 2010, amounted to direct discrimination on grounds of disability, which also includes perception, even if that perception relates to a time in the future.

Employers, therefore, need to be aware of making assumptions about the health issues of an employee (or prospective employee) and potentially acting on those assumptions. That may, as in this case, amount to disability discrimination even if the person is not at that time considered to be a disabled person.

Safia Tharoo, Barrister, 42 Bedford Row, London

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