Under Section 13 of the Equality Act 2010, direct discrimination occurs when the reason for a person being treated less favourably than another is one of the protected characteristics covered by the Act. This means that someone who does not have a protected characteristic but has suffered less favourable treatment because they were wrongly thought to do so is protected under the Act.

In Chief Constable of Norfolk v Coffey, the Court of Appeal has ruled that a police constable who was turned down for a transfer from one force to another was a victim of direct perceived disability discrimination.

The case was brought by an officer at Wiltshire Constabulary who suffers from bilateral mild sensorineural hearing loss with tinnitus. Her condition had never interfered with her doing her job and it was agreed that it was not a disability within the meaning of the Act as it was not a physical or mental impairment that had a substantial and long-term adverse effect on her ability to carry out normal day-to-day activities.

When the officer applied for a transfer to Norfolk Constabulary, however, her application was turned down. On a medical assessment, carried out as part of the recruitment process, a medical adviser had stated that she had significant hearing loss in both ears and was 'just outside the standards for recruitment strictly speaking'. The adviser did also remark, however, that the officer had carried out an operational policing role with the Wiltshire Constabulary without any undue problems and recommended an 'at work' test to further assess her effectiveness when working in an operational environment.

Norfolk Constabulary did not accept this recommendation and instead sought the opinion of another medical adviser, who concluded that there had been no recent deterioration in the officer's hearing and that she would pass a practical test. This was backed up by an ear, nose and throat specialist whom the officer consulted herself. The specialist confirmed that her hearing levels were stable, and a copy of the report was sent to Norfolk Constabulary.

However, no individual assessment of the officer's capabilities was carried out and Norfolk Constabulary declined her application because her hearing was below the medical standard for recruitment. In the view of its decision maker, her hearing problem meant she was incapable of performing front-line duties or might become incapable of performing them in the future.

The officer claimed that she was a victim of direct discrimination on the basis of perceived disability. Norfolk Constabulary insisted that it did not regard her as a disabled person. The decision to reject her application was made on the basis that she could in the future become permanently restricted with regard to the duties she was able to perform were her hearing to deteriorate, leaving the Constabulary with fewer officers to deliver front-line services.

The Employment Tribunal (ET) found that the officer had been treated less favourably because of her perceived disability. Despite Norfolk Constabulary's protestation to the contrary, the only justification for not employing her had been that she did not meet the required medical standards for hearing. The ET could only conclude that the decision maker perceived that she did have a disability which could not be accommodated by making reasonable adjustments or perceived that she had a progressive condition which would require adjustments to be made for her in the future.

The Employment Appeal Tribunal upheld the ET's decision. It could see no reason to exclude from disability law a perception, wrongly conceived, that an impairment that currently has no substantial adverse effect could do so at some point in the future. Such an approach is consistent with EU case law and the protection offered by equality law would be lacking 'if an employer, wrongly perceiving that an employee's impairment might well progress to the point where it affected his work substantially, could dismiss him in advance to avoid any duty to make allowances or adjustments'.

The Court of Appeal agreed and dismissed Norfolk Constabulary's appeal. In doing so, it confirmed that the circumstances of the case meant that it fell within Section 13 of the Act, rather than Section 15 where the reason for unequal treatment is something arising in consequence of a person's disability. The ET was entitled to conclude that a person not perceived to be disabled would not have been treated in the same way. The Constabulary's refusal to engage the officer stemmed, perhaps subconsciously, from a motive or mental process that was affected by a stereotypical assumption about the effects of her perceived disability. The officer had previously performed perfectly satisfactorily in a front-line role and the ET did not err in law in concluding that she had been subjected to direct discrimination.

For help and advice on discrimination in the workplace please contact Emma Hewitt on 0808 166 8860 or email e.hewitt@sydneymitchell.co.uk.

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