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Case law: Employer’s assumption that employee may be disabled in the future can be unlawful ‘perceived disability discrimination’

Employers dealing with an employee who has a potentially progressive impairment which has no substantial adverse effect on their ability to carry out day-to-day activities, should ensure they do not discriminate against them by assuming the impairment is likely to develop in the future so that it does have such an effect, as this may amount to disability discrimination by perception.

August 2019

This update was published in Legal Alert - August 2019

Legal Alert is a monthly checklist from Atom Content Marketing highlighting new and pending laws, regulations, codes of practice and rulings that could have an impact on your business.

A police officer applied for a transfer from one police force to another. Her previous force had recorded, after a function test taken when she was recruited, that her hearing was ‘just outside the standards for recruitment strictly speaking’ but noted that she had no problem with day-to-day activities including operational police work.

The Assistant Chief Inspector (ACI) in the new force, without giving her a function test (and despite evidence from three medical experts that her hearing was stable), turned down her transfer application, saying her hearing was not up to the acceptable and recognised standard and, if they took her on, they might have to increase the pool of officers on restricted duties, increasing costs. The officer claimed direct discrimination on grounds she had been disadvantaged on grounds of perceived disability discrimination by the ACI.

The usual test for whether a person is disabled is whether they have an impairment that has, or is likely to have, a substantial adverse effect on their ability to carry out day-to-day activities, including activities at work.

However, a person may also be disabled for discrimination purposes if they suffer a disadvantage not because they are disabled now, but because there is a perception they will become disabled in the future. This can apply, for example, if they have a progressive condition which currently has an effect on their day-to-day activities, but which falls short of a substantial adverse effect - but they suffer a disadvantage because it is perceived as likely that the condition will amount to a substantial adverse effect in future.

The Court of Appeal has now ruled that the ACI’s decision amounted to direct discrimination by perception. The ACI’s fear that the officer might have to be put on restricted duties was evidence of her perception that the officer had a progressive condition likely to develop to a stage where it would have a substantial adverse impact on her ability to carry out day-to-day activities in the future – and this was the reason for refusing the transfer.

Operative date

  • Now

Recommendation

  • Employers dealing with an employee with a potentially progressive impairment that does not currently have a substantial adverse effect on their ability to carry out day-to-day activities should ensure they do not discriminate against that employee because of a perception that the impairment is likely to develop until it does have such an effect, as this may amount to disability discrimination by perception.

Case ref: The Chief Constable of Norfolk v Coffey [2019] EWCA Civ 1061

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