Stereotypical assumptions about a health condition could be disability discrimination – even if the employee is not disabled

Court of Appeal confirms perceived disability discrimination claims are permissible under the Equality Act 2010

The Court of Appeal (CoA) has provided some useful guidance on technical elements of perceived discrimination claims, in the first case of its kind to reach the Court. This includes how perceived discrimination claims work where the individual does not have a 'disability' for the purposes of s.6 of the Equality Act 2010 (EqA'10) (but are thought to have one by a discriminator) and what bearing stereotypical assumptions about the perceived disability have on a claim.

The case below also mixes in the element of a perceived progressive condition. A progressive condition is where the condition has some effect but does not have a substantial adverse effect on the individual at the present time but is likely to have that effect in the future, in which case the individual is treated as disabled in the present for the purposes of the EqA'10.

Case details: The Chief Constable of Norfolk v Coffey

We covered the EAT's decision in this case in our January 2018 Employment Law Bulletin (at page 4), which includes an overview of the facts of the case. The decision was appealed to the CoA.

The core facts for the purposes of this article are that when Mrs Coffey applied to transfer from Wiltshire Constabulary to Norfolk Constabulary ('NC') to be a front line officer, she disclosed her hearing loss to NC and was also able to provide medical assessments showing that her condition had not deteriorated in two years. NC were advised to ask Mrs Coffey to submit to an 'at work' test in respect of her hearing, but declined to do so. NC's Acting Chief Inspector ('ACI') ultimately declined Mrs Coffey's transfer.

At tribunal, the ACI said she had some rudimentary understanding of the EqA'10 and did not consider Mrs Coffey to be 'disabled' for its purposes. The ACI said her decision had therefore been purely based on budget and operational pressures, because Mrs Coffey might not be fully operational due to her hearing condition, and the ACI needed to be mindful of NC's finite resources and how this might affect front line services.

Court of Appeal decision

The CoA upheld the EAT's decision, which had found that the ACI had perceived Mrs Coffey to have a disability on the grounds of a perceived progressive condition. The CoA agreed with the EAT's view that a discriminator need not know the detail of the legal definition of disability under the EqA'10 to discriminate against someone on the grounds of perceived disability. However, the CoA made clear that the discriminator's perception of the person discriminated against must encompass all aspects of the definition of disability, which the ACI was found to do in this case.

As part of its appeal, NC argued that Mrs Coffey's complaint was that she had been unfavourably treated because of something arising from her disability (i.e. it was a s.15 EqA'10 discrimination claim) and was not a complaint that she had been less favourably treated because of the disability itself (a direct disability claim). This was because, as NC argued, the ACI's decision was not based on the fact of Mrs Coffey's perceived disability, but the actual things the ACI believed Mrs Coffey could not do in consequence of it. If this were true, Mrs Coffey had no claim because she was not in fact disabled (as it is likely that the person discriminated against must themselves be disabled for a s.15 claim to succeed).

However, the CoA found that the ACI's decision had been taken because of a stereotypical assumption about the effects of what was perceived to be Mrs Coffey's disability. The CoA found this view compelling because NC had refused to consider further medical information before the ACI made her decision (despite recommendations for NC to do so). The CoA held that a stereotypical assumption about the effects of a perceived disability was direct discrimination and Mrs Coffey's claim was therefore successful. However, the CoA accepted that, had the ACI made a genuine mistake about what Mrs Coffey could or could not do as a result of reviewing medical information, Mrs Coffey would only be able to bring a s.15 claim.

Comment

The CoA's decision highlights the need to obtain up-to-date medical information before making any decision in regard to an employee who has, or may have, a disability under the EqA'10. It also highlights the importance of avoiding making stereotypical assumptions about what a disabled person can and cannot do. For instance, if a medical report shows an employee to have a particular condition, employers should seek a report that clearly explains what impact that condition has on the individual in their particular circumstances and what impact it is likely to have on them in future, and not assume the impacts it has (or will) have.    

The latter point is important for employers because the CoA conceded that in circumstances like Mrs Coffey's the individual would usually need to bring a s.15 claim. Mrs Coffey may not have succeeded in such a claim because she did not have a disability. What 'saved' Mrs Coffey's direct discrimination claim was that NC were found to have made stereotypical assumptions about her perceived disability; by avoiding this, employers will reduce the potential for direct discrimination claims that flow from perceived discrimination from individuals who are not 'disabled' for the purposes of the EqA'10.