Everything is not as it Seems!

Chief Constable of Norfolk v Coffey

The Court of Appeal has held that it was direct disability discrimination to refuse a police officer’s request to transfer to a new role because of a perceived disability.

This was the first time the CoA has upheld the case law on Perceived Disability Discrimination which had only ever been applied in the EAT previously. They held that where the discriminator acts in a way which is due to a perceived disability, but the illness falls short of the definition, then the fact that the person acting in such a way thinks the employee is disabled is sufficient for a claim under direct discrimination.

The claimant was a serving police officer. She requested a transfer from Wiltshire to Norfolk Constabulary. At her medical it was found she had some hearing loss with tinnitus. The impairment meant she fell just short of National Recruitment Standards. However, guidance made clear that this standard was not binding and that candidates could and should be looked at individually and assessed in terms of ability based on activities of an operational constable.

The Claimant openly admitted that her hearing loss did not have an adverse effect on her ability to carry out her duties or her daily activities. Moreover, the force also agreed that she was carrying out operational frontline duties without any difficulty. However, when she applied to transfer to the new role, her request was refused on the stereotypical and mistaken assumption about the effects of what was perceived to be a progressive condition which would mean that she would not be able to carry out her front-line duties in the future. It was found that the manager reviewing her application perceived incorrectly that the Claimant would effectively become a “burden” upon on the force and her illness would prevent her from being called out on frontline duties as required, by the responses in which she gave. This amounted to direct disability discrimination even though she was not currently disabled.

The parties and the Court of Appeal agreed, that for there to be a perceived disability, the discriminator must "believe that all the elements in the statutory definition of disability are present".