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Disability discrimination of a non-disabled person

The Employment Appeal Tribunal in the case of Chief Constable of Norfolk v Coffey has recently held that a job applicant was subject to disability discrimination by perception, when her application was rejected on the basis her condition could become a disability in the future.

Background

The Claimant, a serving police officer with the Wiltshire Police, suffered from a degree of hearing loss. Her condition would usually have disqualified her from recruitment but on joining the Wiltshire Police she underwent a successful function test following which she was accepted.

The Claimant applied to transfer to the Norfolk force where her application was rejected on the basis that her hearing did not meet accepted standards. The force was further concerned that should her condition deteriorate she may be placed on restricted duties.

Decision

The Tribunal found that the Norfolk force’s decision to reject her application amounted to an act of direct discrimination based on perception.

Although the Claimant was not disabled at the time of the unsuccessful transfer application, the force perceived that her condition may become a disability at some point in the future and rejected her application on that basis.

The Employment Appeal Tribunal dismissed the appeal by the Norfolk force.

Comment

The Employment Appeal Tribunal noted that there would be a gap in the protection provided by the Equality Act if employers could avoid a future obligation to make reasonable adjustments, by wrongly perceiving a condition may develop to a point where it could be categorised as a disability and dismissing them in advance.

Employers should be cautious when dealing with job applications or workplace decisions such as promotion, for individuals who have a health condition regardless of whether it meets the test for disability at the time. Taking possible future scenarios into account could affect the fairness of a resulting decision.

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