Chief Constable of Norfolk v Coffey

The Court of Appeal dismissed the Chief Constable's appeal against findings that the respondent was the victim of direct discrimination by perception under section 13 of the Equality Act 2010. The court reaffirmed that perception discrimination requires the decision-maker to have believed that the facts constituting the statutory definition of disability were present, even if the decision-maker did not know the legal label.

The court held that front-line policing activities fell within the concept of "normal day-to-day activities" for the purpose of section 6 and Schedule 1, and that a belief that a progressive condition might in the future prevent performance of those activities can bring the case within paragraph 8 of Schedule 1 (progressive conditions). Where the decision-maker made an adverse decision influenced by stereotypical assumptions about the effects of a perceived impairment, direct discrimination under section 13 can arise rather than only section 15 (discrimination arising from disability).

Background and facts:

• The claimant, a police officer with mild bilateral sensorineural hearing loss and tinnitus, had served as a front-line officer in Wiltshire without apparent difficulty. She applied in 2013 for a transfer to the Norfolk Constabulary. Following medical assessment Norfolk declined to progress the transfer on the ground that her hearing fell "just outside the standards for recruitment" and refused to undertake the recommended at-work/practical test.
• The claimant brought proceedings under the Equality Act 2010 alleging discrimination by perception. An Employment Tribunal found in her favour, awarded compensation (stated in the ET Reasons) and made recommendations under section 124(2)(c) of the Act. The Chief Constable's appeal to the Employment Appeal Tribunal (HH Judge David Richardson) was dismissed on 19 December 2017.

Nature of the claim / relief sought: The claimant sought redress for unlawful discrimination, proceeding at the hearing on a case of direct discrimination by perception under section 13 of the Equality Act 2010 (she accepted she was not actually disabled under the Act).

Issues framed and determined:

1. Whether perception discrimination requires the decision-maker to believe that the elements of the statutory definition of disability (section 6 and Schedule 1) were present.
2. Whether front-line police duties constitute "normal day-to-day activities" for the purposes of the disability definition.
3. Whether a decision based on a belief that a progressive condition might in future prevent performance of those activities can be treated as disability for present purposes via paragraph 8 of Schedule 1.
4. Whether the facts of the case should properly be characterised as direct discrimination under section 13 or as discrimination arising from disability under section 15.

Reasoning and outcome: The court held (i) perception discrimination requires the decision-maker to have perceived the facts that make up the statutory definition of disability, (ii) the activities relevant to front-line policing fall within "normal day-to-day activities" within the statutory definition, (iii) belief that a progressive condition could in due course lead to the inability to perform those activities falls within paragraph 8 of Schedule 1 so that the person may be treated as having an impairment with a substantial adverse effect, and (iv) where an adverse decision was influenced by stereotypical assumptions about the effects of a perceived impairment, that may found a claim of direct discrimination under section 13. The appeal was dismissed as the Employment Tribunal's findings did not involve an error of law.

Wider context: The judgment clarifies the application of perception discrimination under the Equality Act 2010, the interaction with Schedule 1 paragraph 8 (progressive conditions) and the boundary between direct discrimination under section 13 and discrimination arising from disability under section 15.

Appeal dismissed. The Court of Appeal held that (1) perception discrimination requires the decision-maker to have perceived the factual elements of the statutory definition of disability; (2) front-line policing duties can fall within "normal day-to-day activities"; (3) a belief that a progressive condition could in the future prevent such activities can engage paragraph 8 of Schedule 1 and be treated as a disability for present purposes; and (4) where an adverse decision is influenced by stereotypical assumptions about the effects of a perceived impairment it may amount to direct discrimination under section 13 rather than only to section 15 discrimination. The Employment Tribunal had not made an error of law.

Employment Tribunal (Bury St Edmunds) found for the claimant and awarded compensation; appeal to the Employment Appeal Tribunal (HH Judge David Richardson) dismissed on 19 December 2017; appeal to the Court of Appeal (this judgment) dismissed [2019] EWCA Civ 1061.