Just prior to the Christmas break, in the case of Chief Constable of Norfolk v Coffey, the Employment Appeal Tribunal upheld a decision that a Claimant suffered direct disability discrimination as a result of a perceived disability.

The Claimant, Ms Coffey, was a serving police officer with the Wiltshire Constabulary. She had been diagnosed with some hearing loss (which had been identified during a medical examination in 2011), though the condition did not meet the threshold of a disability under the Equality Act 2010. She did not require any reasonable adjustments to support her in her role.

She applied for a transfer to the Norfolk Constabulary. As part of a pre-employment health assessment in November 2013 she was told that, due to her hearing loss, she was ‘just outside the standards for recruitment strictly speaking’.  It was noted that she had undertaken an operational role with Wiltshire without problems and an ‘at work test’ was recommended but not progressed. Instead, Norfolk Constabulary sought alternative medical advice. This confirmed that the results of the tests in 2011 and 2013 were similar and that there had not been any deterioration in Ms Coffey’s hearing since 2011. Separate advice obtained by Ms Coffey confirmed that her hearing levels were stable.

It is not clear why the ‘in work test’ recommended for Ms Coffey was not progressed but it appears that the other medical advice obtained by Norfolk and also by Ms Coffey was consistent. Notwithstanding this, Ms Coffey’s application was rejected because her hearing was below the medical standard. The explanation in Tribunal was that it was not appropriate for Norfolk to recruit a restricted officer (i.e., someone who did not meet the medical standard) as this risked increasing the pool of officers with restrictions who were not operationally deployable. Such a decision was made even though Ms Coffey’s condition was stable and she was performing a similar role in Wiltshire without difficulty.

The Tribunal found that Norfolk’s decision to reject Ms Coffey’s transfer application was direct discrimination because it was based on a perceived disability: that her hearing condition might become worse in the future or that she might become disabled in the future and require adjustments.

Effect on advice: This case acts as a reminder that an individual who does not meet the threshold for disability under the Equality Act can still bring a successful direct discrimination claim if the reason for the treatment is that they are perceived to be disabled or that they may become disabled in the future and/or require adjustments. In this case, perhaps unusually, not even the medical evidence supported the unlawful perception about Ms Coffey’s condition.