Recent case law has shown that direct disability discrimination will occur if a prospective job candidate is turned down on the basis that a condition could develop into a disability in the future.
In the recent employment appeal tribunal case of Chief Constable of Norfolk v Coffey the tribunal upheld a finding of disability discrimination by perception. In this case, the claimant had been a serving police officer with Wiltshire Police since 2011 but applied for a job transfer to Norfolk Police. The claimant suffered from hearing loss but had been accepted into Wiltshire Police following a function test. However, Norfolk Police rejected the claimant’s application to transfer forces because her hearing was just below the acceptable standard required for recruitment. Additionally, concerns that the claimant may have ended up being assigned restricted duties in the event that her hearing deteriorated further meant that her application was unsuccessful.
The tribunal found that the decision to reject the claimant’s application on this basis amounted to direct discrimination based upon the perception that the claimant was disabled or would be disabled in the future.
The employment appeals tribunal upheld the judgment, dismissing the employer’s attempt to appeal the decision of the tribunal at first instance.
Section 13 of the Equality Act 2010 states ‘A' directly discriminates against 'B' if he/she treats him less favourably ‘because of a protected characteristic’.
This definition is wide enough to incorporate discrimination on the grounds that someone may also be perceived as holding a protected characteristic therefore a claimant will be protected by the Equality Act 2010.
If someone has been discriminated against during the course of their employment, they may be able to bring a claim in the employment tribunal however this must be done within 3 months less one day from the act of discrimination. It is therefore important to seek legal advice and take action as soon as possible in order to best protect the position and reach a satisfactory outcome.
If you feel that you have been discriminated against due to a disability or a perception that you suffer from a disability please contact our specialist discrimination team on 01616 966 229 who will be able to provide you with advice and assistance.
By Laura Brown, employment and discrimination team