The Employment Appeal Tribunal has upheld a tribunal’s decision that an employer had directly discriminated against an employee because of a perceived disability.
The employee, in this case, was a police constable. She had some hearing loss that placed her just outside national standards for hearing loss for the police. However, following national guidance, the Constabulary arranged a practical functionality test for her, which she passed, enabling her to work as a constable (without adjustments).
She subsequently applied to transfer to another police force. She underwent a hearing test which recorded that she had the same level of hearing loss as previously identified. Her application was nevertheless rejected on the basis that she did not meet the national standards on hearing. No practical functionality test was arranged on this occasion.
Perceived disability claim made
She issued tribunal proceedings alleging that she had been perceived as having a disability and that the decision to reject her application was direct disability discrimination.
Allowing the claims the tribunal said that it was perceived that she had an actual or a potential disability and that she suffered direct discrimination as a result.
Dismissing a subsequent appeal, the Employment Appeal Tribunal said that while the tribunal had not expressly referred to progressive conditions the evidence before it had plainly demonstrated that it was perceived that her condition could well progress to the extent that she would need to be placed on restricted duties. The employer had therefore perceived that she had a disability in the sense of a progressive condition.
It went on to say that the tribunal had been entitled to hold that the decision not to recruit her amounted to direct discrimination.
Case reference: Chief Constable of Norfolk v Coffey