An employer directly discriminates against a non-disabled job applicant if it rejects them because it believes their condition could develop into a disabling condition
The Claimant was a serving police officer in the Wiltshire Constabulary. When she applied in 2011 it was discovered that she suffered from bilateral mild sensi-neural hearing loss with tinnitus. Home Office Medical Standards for Police recruitment set a standard for hearing loss which the Claimant fell outside of. The Guidance to these standards suggested that if the hearing loss was only below standard in one ear or if it was a borderline test then consideration should be given to a practical hearing test to assess functional disability. If both ears were below standard the Guidance only suggested that the candidate was 'unlikely to be suitable'.
The Claimant undertook a functional hearing test which she passed and was appointed as a constable.
In 2013 she made an application to the Norfolk constabulary which was accepted subject to a medical test. A medical advisor stated that she had hearing loss 'just outside the standards for recruitment strictly speaking'. He noted that she was undertaking a police role without undue problems and recommended an 'at-work' hearing test. However, Norfolk Constabulary sought clarification from another medical advisor who observed that the 2011 and 2013 audiogram tests were very similar. The Claimant was not offered an individual assessment and her application for a post with Norfolk was rejected.
The Claimant herself did not consider herself a disabled person and made a claim of discrimination on the basis of a perceived disability. At the Employment Tribunal the Acting Chief Inspector who had made the decision to reject the Applicant gave evidence that she did not perceive the Claimant to be disabled. However, she gave evidence of the austere circumstances in which the constabulary was operating and said that "To knowingly risk increasing the pool of restricted officers who did not meet the nationally published criteria" was not consistent with service delivery.
The Employment Tribunal found that the Norfolk Constabulary had discriminated against the Claimant on the basis of a perceived disability. The Employment Appeal Tribunal ('EAT') agreed.
Section 13 of the Equality Act 2010 sets out a definition of direct discrimination wide enough to encompass discrimination on the basis of a perceived characteristic. If an employer rejected a white man's application for a job wrongly believing he was black that is direct discrimination. Similarly you don't have to be disabled to claim direct disability discrimination.
However, perceived direct disability discrimination is not as straightforward as perceived direct discrimination on grounds of other protected characteristics such as race, sex, age etc. A prospective employer probably does not have much knowledge of the definition of disability under the Equality Act 2010 when it makes its recruitment decisions. A recruiter probably does not apply his or her mind to whether an applicant has an impairment that has a substantial and long-term adverse effect on his abilities to carry out day-to-day activities. So how can it be said that an employer perceives that a non-disabled person has a disability?
The EAT in Coffey said that whether or not an employer has directly discriminated against a person will not depend on whether it perceives that person to be disabled as a matter of law and therefore does not depend on knowledge of disability discrimination law. It will depend on whether the employer perceived that person 'to have an impairment with the features which are set out in the legislation'.
What the EAT in Coffey decided is that it is direct discrimination if an employer knows that someone has an impairment, doesn't believe that it currently amounts to a disability but perceives that the impairment could well have a substantial long-term impact in the future.
A disability can be a physical or a mental impairment. But judging whether a mental impairment amounts to a disability is more difficult than with physical ones. Mental health problems can be fluctuating in nature, unpredictable in how they manifest themselves and have a high-level of interactivity with environments like a workplace.
Employers may make judgments about workers, for example thinking that someone who has problems with depression or anxiety won't be up to the rigours of a stressful job. People miss out on jobs and promotions and might be unable to say with confidence that they are currently disabled. However, a view by an employer that someone won't be up to the rigours of a stressful job could well amount to discrimination by perception.
Coffey was an employment case and this article has spoken so far about 'employers and employees'. But there is no reason why this case could not apply to the other areas in which the Equality Act 2010 applies. Coffey might prove useful in proving that an insurer who declines to offer cover to someone who they judge will present a risk of making a claim in the future has discriminated by perception, for example.
Our legal newsletter provides a regular update on cases and policy in relation to mental health, mental capacity, discrimination and community care. To receive the newsletter by email please click the link below.