Chief Constable of Norfolk v Coffey

Direct discrimination under section 13 of the Equality Act 2010 includes discrimination because of a perceived disability. The discriminator must perceive an impairment possessing every feature of the statutory definition, although knowledge of disability law or use of the label “disability” is unnecessary.

Normal day-to-day activities encompass activities relevant to working life. An employer may therefore perceive disability where it believes that hearing loss will prevent a person from performing ordinary activities involved in front-line police work.

A stereotypical assumption that disability makes a person unable to do a job may constitute direct discrimination. By contrast, treatment based on a genuine assessment that the person lacks a required ability will ordinarily fall under section 15, where justification may be available.

A serving front-line police officer with mild hearing loss applied to transfer from Wiltshire Constabulary to Norfolk Constabulary. Her hearing fell just outside the recruitment standard, although she had passed a functionality test and worked without difficulty. Norfolk refused the transfer without undertaking the recommended individual assessment because it perceived a risk that she would become unable to perform unrestricted front-line duties.

The Employment Tribunal upheld her claim of direct discrimination because of perceived disability and later awarded compensation. The Employment Appeal Tribunal dismissed the Chief Constable’s appeal.

The Chief Constable appealed on whether the decision-maker perceived all the statutory elements of disability, whether front-line police duties were normal day-to-day activities, whether a perceived progressive condition was covered, and whether the refusal concerned disability itself under section 13 or something arising from disability under section 15 of the Equality Act 2010.

1. Appeal dismissed. Section 13(1) of the Equality Act 2010 extends to discrimination because of a perceived protected characteristic. In a perceived-disability claim, the discriminator must perceive an impairment having all the features prescribed by the statutory definition. The discriminator need not know the legal definition or attach the label “disability” to the perceived facts.

2. The expression “normal day-to-day activities” must encompass activities relevant to working life. Although front-line policing is challenging and in some respects unique, the activities for which good hearing is relevant are not specialised activities comparable to concert piano playing or watch-repairing. A belief that hearing loss would prevent an officer from performing front-line duties was therefore a belief in a substantial adverse effect upon normal day-to-day activities.

3. The evidence could not support a finding that the decision-maker believed the officer was currently unable to perform front-line duties. It did, however, support the finding that she perceived a risk that the officer’s hearing would deteriorate and make her unable to perform them.

4. That perceived condition fell within paragraph 8 of Schedule 1. The decision-maker perceived a progressive impairment having at least some present adverse effect and believed that deterioration capable of producing a substantial adverse effect could well occur. Paragraph 8(2) treats a person satisfying those conditions as presently disabled. The interpretation of “likely” as meaning “more likely than not” in Mowat-Brown was no longer good law; it means “could well happen”.

5. Direct discrimination may arise where concern about a disabled person’s ability to work is significantly influenced by a stereotypical assumption about disability. The tribunal was entitled to infer such an assumption from the failure to undertake an individual assessment, the disregard of medical advice, and the rejection of the suggested distinction between front-line work in two police forces.

6. A genuine decision that a person lacks an ability required for the work will ordinarily fall outside section 13 and instead engage section 15, under which justification is available. Section 23 requires comparison by reference to the person’s actual abilities; it does not permit an employer’s erroneous stereotype about those abilities to be treated as a material difference. Once the reason for the treatment was established, a separate express comparator analysis was unnecessary.

• Court of Appeal (Civil Division): Dismissed the Chief Constable’s appeal and upheld the Employment Appeal Tribunal’s decision: [2019] EWCA Civ 1061.
• Employment Appeal Tribunal: HH Judge David Richardson dismissed the Chief Constable’s appeal against liability by a judgment handed down on 19 December 2017.
• Employment Tribunal: Upheld the claim of direct discrimination because of perceived disability. It subsequently awarded £26,616.05 and made two recommendations.