“Have you heard?” - Court of Appeal gives judgment in perceived disability discrimination test case

Fri, 21 Jun 2019

The Court of Appeal has today handed down judgment in the case of the Chief Constable of Norfolk Police v Coffey. The Court of Appeal dismissed the Chief Constable’s appeal, upholding the judgment in favour of the claimant, and confirmed that the legal test for direct discrimination because of perceived disability had been correctly set out by the Employment Appeal Tribunal (“EAT”) in its earlier judgment in the case.

The claimant was a police officer in Wiltshire Police who suffered from mild hearing loss but which had no effect on her ability to carry out her duties. She applied for a transfer to Norfolk Police but her application was refused on account of her hearing loss. Although it was common ground that the claimant’s hearing loss was not a disability the case was argued on the basis that the chief inspector who declined the application to transfer wrongly perceived the claimant’s hearing loss to be a disability and that was the reason for the decision.

The claimant was successful in the Employment Tribunal. The Chief Constable appealed to the EAT. The EAT upheld the original judgment and set out for the first time at appellate level the test for direct discrimination because of perceived disability.

The Chief Constable appealed to the Court of Appeal.

The Court of Appeal (Underhill LJ giving the lead judgment) held that the Tribunal had been correct to find that the chief inspector’s evidence amounted in law to a perception of disability. It did not matter that the chief inspector did not realise that the legal definition of disability was met. In particular, the chief inspector had not appreciated that the definition of disability includes progressive conditions which may not be particularly problematic currently but are likely to progress to disabling levels in the future. In considering this element of the appeal, the Court of Appeal noted there appears to be a gap in protection for those diagnosed with a progressive condition but who are currently asymptomatic in the statutory test for progressive conditions (contained in schedule 1 of the Equality Act 2010).

The Court also considered the interplay between section 13 (direct discrimination) and section 15 (discrimination arising from disability) of the Equality Act and the circumstances in which a disabled person (or someone perceived to be disabled) can claim the reason for the adverse treatment was their disability per se (section 13), rather than something arising in consequence of their disability (section 15).

In this particular case, because the chief inspector’s decision was irrational and without reasonable explanation, applying the shifting burden of proof provision in section 136, it was appropriate to find that the decision was direct discrimination because of (perceived) disability, and not a decision based only on the effects of that (perceived) disability. 

The judgment also provided definitive confirmation, if confirmation were needed, that a claimant need not possess the protected characteristic in question to bring a claim for direct discrimination. However, a claimant must in law be disabled to enjoy protection under section 15.

The judgment can be found HERE

The hearing was live streamed and a video of the hearing can be found here. https://www.judiciary.uk/publications/the-chief-constable-of-norfolk-v-coffey/

Jack Feeny represented the claimant

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