The Equality Act states that it is direct discrimination to treat someone less favourably than someone else because of a protected characteristic, such as disability. In Chief Constable of Norfolk v Coffey, the Court of Appeal held it is still direct discrimination to treat people with progressive conditions less favourably because they are perceived to have a disability.
Basic facts
Ms Coffey, a police officer in the Wiltshire Constabulary, suffered from a degree of hearing loss which did not cause her any problems in terms of doing her job. As such, it did not constitute a disability within the meaning of the Equality Act 2010.
In 2013 she applied for a transfer to the Norfolk Constabulary but was turned down because, having done a hearing test, it was found to be “just outside the standards for recruitment strictly speaking”, raising concerns that her appointment might put financial constraints on the force in the future.
Ms Coffey brought a claim of direct disability discrimination under section 13 of the Equality Act on the basis that she had been treated less favourably because she was perceived to have a disability.
Relevant law
Under section 6 of the Equality Act, a disability is defined as a physical or mental impairment which has a substantial and long-term adverse effect on a person’s ability to carry out normal day-to-day activities.
Section 13 provides that direct discrimination occurs when a person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.
Paragraph 8 of Schedule 1 of the Act states that people with a “progressive condition” are “to be taken to have an impairment which has a substantial adverse effect” if their condition is likely to result in them having that impairment.
Tribunal and EAT decisions
The tribunal held that the Acting Chief Inspector (ACI) perceived that Ms Coffey had a potential or actual disability which would require adjustments in the future to her role as a frontline officer. As such, the ACI had directly discriminated against her.
Holding that the phrase “normal day-to-day activities' should be given "an interpretation which encompasses the activities which are relevant to participation in professional life”, the EAT agreed with the tribunal that her employer had a perception that Ms Coffey’s hearing loss would impact on her ability to carry out normal day-to-day activities (see weekly LELR 559).
Decision of Court of Appeal
The Court of Appeal agreed that it was clear from the ACI’s witness statement that she held a belief that Ms Coffey’s hearing loss might mean that she could not perform the role of a frontline officer at some undefined point in time in the future. So although it had some impact on her ability to carry out normal day-to-day activities at present, the ACI’s concern or perception was that it would deteriorate.
The next question was whether it was discriminatory within the terms of the Equality Act to refuse employment because of this perception. The Court held that as this was a progressive condition, it was covered by paragraph 8 which protects people who currently have an impairment. (even if it is not substantial). As such people with progressive conditions are to be treated as disabled within the meaning of the Act.
Given that Ms Coffey was rejected because she would be unable to perform a front-line role in the future, the Court held that she had been directly discriminated against.