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

Employment & HR Article

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.

If you are looking for any more information with regards to this or our services please view our Employment & HR section. You can also contact our Employment and HR department via email or phone on 03332 071135. Alternatively send any question through to Forbes Solicitors via our online Contact Form.


20 Feb 2019

Employment & HR


Employment Appeal Tribunal finding on religious discrimination in nursery case

Ms De Groen had been employed as a teacher by Gan Menachem, an ultra-orthodox Jewish Nursery, since July 2012…

Read the article

Emma led us through a complex Employment Tribunal case which we would not have successfully succeeded without her and the team at Forbes support, they made us feel at ease throughout the process

Alexander Dennis Limited

More clients

We wouldn't work with any other firm when it comes to employment and HR topics.

Charlotte Jackson
UK HR Business Partner
Voith Paper Ltd

More clients

The service offering at Forbes is of outstanding quality and value and has consistently exceeded our expectations.

Kathryn Robinson
Head of HR
Accrol Papers

More clients

Head of department Jonathan Holden leads a team of 'highly competent individuals' covering the full range of employment matters.

2018-19 edition Legal 500

More clients

Forbes Solicitors provides 'swift, efficient and pragmatic advice to its clients'.

2018-19 edition Legal 500

More clients

We find that the Forbes team take a pragmatic and supportive approach and enjoy working with their team.

Jayne Mizon
HR Manager
Kepak Convenience Foods

More clients

We approached Forbes Solicitors on a recommendation because as a small independent organisation we needed clear guidance and backing on HR matters.

Stephen Neaves
Piccadilly Garden & Support Service

More clients

The Forbes team were fantastic, the work and effort they put in was impressive and I was made to feel at ease throughout the proceedings. I can not thank the Forbes team enough

Peter Morley

More clients

Without doubt Jonathan Holden is like a security blanket. He understands that schools need to act in the best interest of school as a whole

Brenda P Allen

More clients

I will keep promoting you and your services because I'm fully committed to the quality of your work and the impact that it has in school.

Sharon Asquith
Ashton Community Science College

More clients

Amy Stokes was more than helpful throughout the whole process - Thank you Amy.

Stephen Fielden

More clients

Forbes are proactive in relation to changes in legislation and keep me informed via regular seminars, updates and bulletins.

Nicola Watson
Business Support Manager
Birchall Catering Supplies Ltd

More clients

I have always found everyone at Forbes to be approachable, helpful and professional, and would have no hesitation in recommending them to any other business

Catherine Ogden
Commercial Director
E A Foulds Limited

More clients

May I say how much the employment team at Forbes have helped Samlesbury Hall with staff issues over the past ten years.

Sharon Jones
Hall Director
Samlesbury Hall

More clients

...we have found Forbes to be an excellent team of people to work with, fully understanding our needs and goals.

Landon Helsby
Managing Director
Apeks Marine Equipment Ltd.

More clients

Make an enquiry