Is an employer's perception that a condition could become a disability in the future discrimination or not?

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26 January, 2018

The Employment Appeal Tribunal (EAT) recently determined that it is unlawful for an employer to reject a potential candidate because they believe that a current health condition may become a disability in the future.

In the case of Chief Constable of Norfolk v. Coffey, the claimant (C), a Police Constable, had asked for a transfer to Norfolk Constabulary (N) for personal reasons. The request was rejected by N on the basis of a concern that her condition (hearing loss) may lead to her being on restricted duties if her condition was to deteriorate. After having undergone the interview process, she was given a number of medical assessments, which found that her hearing ability was slightly below guidance standards.

N stated at the employment tribunal hearing that they did not consider the condition to be a disability. C had not required any reasonable adjustments up to this point and had carried out her role without issue.

The issue for the tribunal, and subsequently the EAT, to consider was whether the rejection of C's request to transfer could constitute direct discrimination on the grounds of disability, in particular because of the perception that C would have a disability in the future.

The EAT held that direct discrimination had taken place. It found that the concept of direct discrimination was wide enough to cover the perception of future disability since 'There would be a gap in the protection offered by Equality Law if an employer, wrongly perceived 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'.

Employers must already be alert to the potential for a medical condition to amount to a disability when handling employees' issues. Discrimination based on the perception that an employee has any protected characteristic is not a new concept but this case arguably extends perception to what an employer might foresee to be the case. Given that direct discrimination and discrimination based on perception extends to a number of protected characteristics, employers might be cautious about making decisions adverse to employees where the reason for that decision is, for example, that the employee, in the future, will be married, of a certain age, or pregnant.

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