Perception that a condition could become a disability in the future - discrimination or not?

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16 February, 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.

In this case the Claimant was a police constable who had asked for a transfer to Norfolk Constabulary for personal reasons, which was rejected by Norfolk on the basis of a perception that her condition 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 she had a hearing condition that was slightly below the guidance standards.

The employer stated that they did not consider that the condition was a disability, nor was it determined as such by Occupational Health or Medical Assessments. She had not required any reasonable adjustments up to this point and has carried out her role without any problems.

The issue for the EAT to consider was whether it would be considered direct discrimination on the grounds of disability for Norfolk Constabulary to reject the transfer on the perception that a condition could become a disability in the future and therefore restrict the employee in their duties.

The EAT found in favour of the employee and held that direct discrimination had taken place as it would be farcical to allow employers to pre-judge whether a condition may later become a disability. The EAT stated "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.

Schools must be aware of the sensitive nature surrounding the laws on medical conditions and disabilities in the workplace. Whilst a disability may hinder an employee's ability to work in a school environment due to the nature of the work, the size and setup of the building, the principles of the Equality Act 2010 appear to have been stretched to include a condition which is a foreseeable disability. Therefore the duty to consider reasonable adjustments is even more significant. Schools in particular must exercise caution when taking into consideration a condition relating to an employee who may be transferring between locations or indeed applicants for a new role who may disclose a condition that could impact their duties later down the line.

If you require any more information, please view our Education section on the Forbes website or contact Ruth Rule-Mullen in our Education department via email or phone on 01772 220195. Alternatively, please send any question through to Forbes Solicitors via our online Contact Form.

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