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Motor Trade Legal News

Perceived disability discrimination

In a recent case law development the Employment Appeal Tribunal (EAT) has provided a sobering reminder to employers of the extent of the protected offered by the Equality Act in respect of disability discrimination.  In Chief Constable of Norfolk v Coffey the EAT affirmed that it can be direct disability discrimination if a non-disabled job applicant is rejected because of a perception that a condition could become a disability in the future.

In the case the Claimant who was a serving Police Officer in the Wiltshire Police Force applied for a transfer to another force.  She had a degree of hearing loss.  Norfolk Police rejected her transfer request because of concerns she might end up on restricted duties should her hearing deteriorate.  The tribunal found the decision was direct discrimination based upon a perception that the Claimant would be disabled in the future.  The hypothetical comparator for disability purposes would be a candidate whose condition was not perceived as likely to deteriorate.  The EAT considered there would be a gap in the protection offered by Equality law 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 or her in advance to avoid any duty to make allowances or adjustments.

The case reminds employers that protection from disability discrimination therefore applies to job applicants (i.e. those who are not yet employees) and those who are not yet disabled within the meaning of the Equality Act.