It is well understood that refusing to hire somebody because they are disabled will be discriminatory. But what happens if you refuse to hire someone because you think they might be disabled? Or what happens if you refuse to hire someone thinking they might become disabled in the future? These were the issues that the Employment Appeal Tribunal had to tackle in The Chief Constable of Norfolk v Mrs L Coffey.
Mrs Coffey was a police officer who applied for a role in the Norfolk Constabulary. She was successful in her application and was offered the role, subject to her passing the medical tests. As part of those tests, she undertook a hearing test which confirmed (as had been previously known, whilst she had served as a police officer in her previous unit) that she suffered from significant hearing loss, putting her just outside the national standards for police officers.
The Norfolk force did not undertake any practical tests, to identify what impact (if any) that hearing loss had on her ability to perform her duties. Instead, it rejected Ms Coffey’s application on the basis that she did not meet the national standards, even though she was already doing effectively the same job for another force.
Part of the reasoning given by the force was that her hearing could deteriorate to the point where she would have to be taken off the active roster and assigned administrative duties. Norfolk argued that it had to operate under very tight cost and resourcing pressure, and could not justify hiring an officer who might have to move to restricted duties.
Direct discrimination occurs when someone a subjects another to a detriment because of their protected characteristic – be that race, gender, sexuality, or disability. The Norfolk Constabulary had argued that it had not discriminated against Ms Coffey because it had not subjected her to a detriment because of her disability, but because she might become disabled in time.
However, the Employment Tribunal, and the Employment Appeal Tribunal agreed, that the Equality Act 2010 was wide enough to also cover cases where a person is subject to a detriment because the employer perceives that they have a disability – even if they were wrong. Therefore, by rejecting Ms Coffey’s application because of their perception of Ms Coffey’s potential future disability – progressive hearing loss that one day might require Ms Coffey to be moved to restricted duties – the Norfolk Constabulary had discriminated against her.
The Equality Act makes it unlawful to discriminate against a person if you subject them to a detriment because you believe they have a protected characteristic – even if you are wrong. The Act’s guidance gives the example of an employer who believes a white man to be black because of the name on his application form, and rejects him on that basis.
The argument that you believed they did not have the disability now but might in the future – as was the case here – is no defence.