Discrimination for no disability

It is against the law for someone to be discriminated against because of:

  • age
  • being or becoming a transsexual person
  • being married or in a civil partnership
  • being pregnant or on maternity leave
  • disability
  • race including colour, nationality, ethnic or national origin
  • religion, belief or lack of religion/belief
  • sex
  • sexual orientation

These are called ‘protected characteristics’.  The Equality Act 2010 provides legal protection from discrimination:

  • at work
  • in education
  • as a consumer
  • when using public services
  • when buying or renting property
  • as a member or guest of a private club or association

The EAT has found that it is possible for someone to be discriminated against under the Equality Act 2010 (the 2010 Act) for a ‘perceived disability’. This means that a person can be discriminated against by their employer for a disability that they do not actually have.

The 2010 Act defines a disability as a long-term impairment (likely to last for more than 12 months or a recurring condition) that has a substantial effect on the person’s ability to carry out normal day-to-day activities

A female police officer suffered from hearing loss - but it only put her just outside the normal criteria for police recruitment and she carried on her role as a serving police officer. A few years after she started her job as a police officer, she applied for a transfer to another police force and had a medical assessment which found her hearing to be below the required standard.  Further assessments were recommended but the force to which she wanted a transfer did not carry out these assessments.  It refused her application for a transfer on the basis that her hearing loss might worsen over time which would mean the range of duties that she might be able to carry out in the future would be restricted. The officer’s hearing at the time of her assessment was not serious enough to meet the definition of ‘disability’ under the 2010 Act. 

The officer brought a claim for direct discrimination and argued that she had been perceived to have a disability. Her claim was upheld by the EAT which confirmed that a perception of disability was enough to bring a claim for direct discrimination. The key point is that the officer did not have the disability that she was perceived to have.

The EAT said, '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 in advance to avoid any duty to make allowances or adjustments'.

It is important for employers to ensure that their managers are fully aware that a claim can be brought where a person feels that they have been discriminated against because of a perceived characteristic. This can be relevant to recruitment, transfer or promotion.

Case:  The Chief Constable of Norfolk v Coffey UKEAT/0260/16

To discuss this or any other employment related issue, contact us.

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