Chief Constable of Norfolk Constabulary v Coffey

Direct discrimination under section 13 of the Equality Act 2010 includes treatment based on a mistaken perception that a person has a disability. The relevant question is whether the discriminator perceived an impairment with the statutory features of disability, not whether the discriminator understood the law correctly. That may include a perception that an impairment could well develop into a substantial and long-term adverse effect. In a disability comparison, the claimant’s actual abilities must be considered. Section 23(2) does not permit an employer to rely on a stereotypical or mistaken belief that the claimant lacks an ability which she in fact possesses. A person who genuinely lacks the required ability may be treated under section 15, but an employer cannot avoid direct discrimination by mischaracterising disability-related assumptions as an ability assessment.

The claimant was a serving police officer who had mild bilateral hearing loss and tinnitus. She had passed a practical hearing assessment and had worked as a front-line officer for the Wiltshire Constabulary without difficulty. The respondent refused her transfer application because her hearing fell outside the national recruitment standard, despite medical advice recommending an assessment of her operational effectiveness.

The Employment Tribunal upheld her claim of direct discrimination based on perceived disability and recommended that the rejection be expunged from the respondent’s records. The respondent appealed, arguing that the tribunal had applied the wrong disability test, used the wrong comparator and wrongly categorised the treatment as direct discrimination.

1. Appeal dismissed. The Employment Appeal Tribunal, sitting alone, held that section 13 of the Equality Act 2010 is sufficiently broad to cover direct discrimination based on a perceived protected characteristic, including perceived disability.
2. The perception must be assessed by reference to whether the putative discriminator perceived the claimant to have an impairment with the features set out in the statutory definition. The discriminator’s knowledge or misunderstanding of disability law is not determinative.
3. A perception that an impairment could well progress so as to produce a substantial adverse effect is capable of amounting to a perception of disability. Paragraph 8 of Schedule 1 uses “likely” to mean that the adverse effect could well happen. This approach was consistent with the disability definition in Ring, including its application to participation in professional life.
4. The Employment Tribunal’s reasoning could have been linked more expressly to section 6, Schedule 1 and Ring. Nevertheless, its factual findings and the decision-maker’s evidence showed that the claimant was perceived as potentially becoming a permanently restricted officer. The tribunal was therefore entitled, and effectively bound, to find perceived disability.
5. Section 23(2)(a) requires the comparison to take account of abilities. It protects an employer where a disabled person genuinely lacks an ability required for the work. It does not protect an employer that wrongly assumes that disability means the claimant lacks an ability which she actually has. Such a stereotypical assumption may constitute direct discrimination.
6. The appropriate comparator was a person not perceived to be disabled, but with the claimant’s abilities. The tribunal was entitled to find that such a person would not have been rejected. The refusal resulted from the decision-maker’s belief that the claimant would become a liability, after disregarding the recommendation for an individual practical assessment.

• Employment Appeal Tribunal: dismissed the Chief Constable’s appeal from the Employment Tribunal’s judgment dated 19 January 2016.