However, in Chief Constable of Norfolk v Coffey a claim that was successful before the tribunal has now been upheld by the EAT.
The Claimant, Ms Coffey, was employed by Wiltshire Constabulary as a staff member in 2009, but had previously been employed by the Norfolk Constabulary as a police officer before taking a career break for family reasons. In 2011 she applied to the Wiltshire Constabulary to become a police constable. As part of the process she underwent a medical which showed she suffered from some hearing loss and tinnitus. As this meant that, on paper, Ms Coffey did not meet the required standard Wiltshire Constabulary organised a practical functionality test which Ms Coffey passed and she subsequently successfully undertook front line duty.
In 2013 Ms Coffey applied to transfer to the Norfolk Constabulary, disclosed her hearing loss and enclosed the report from the functionality test. Following an interview Ms Coffey was told her application had been successful subject to a fitness and pre-employment health assessment. When assessed the medical advisor found her hearing to be just outside the standard for recruitment as it had been in 2011 and recommended an at work test. However, Norfolk Constabulary did not accept the recommendation and instead sought further clarification from another medical adviser. That medical adviser concluded her hearing was not deteriorating and, as such, it could be assumed she would pass a practical test as she had in 2011. Despite this the application was then refused, one of the reasons being that Ms Coffey may need to be put on restricted duties at a later date if the condition deteriorated.
The Employment Tribunal found that the Norfolk Constabulary had perceived Ms Coffey to have a disability which could not be accommodated by reasonable adjustments or perceived that she would require adjustments in the future and therefore she had suffered direct perceived disability discrimination. The Respondent appealed both the conclusion that Ms Coffey had been perceived as disabled and that she had been treated less favourably because of that.
The EAT found that the belief that Ms Coffey may require to be on restricted duties in the future indicated that the Respondent perceived her hearing loss to be a progressive condition. Under the Equality Act 2010 progressive conditions are treated as a disability if their effect will have an substantial adverse impact on day to day activities in the future. As such, the Employment Tribunal were entitled to conclude that the Respondent had perceived Ms Coffey to be disabled. The EAT also found that a comparator who did not have a condition that the Respondent perceived would deteriorate, would not have been treated in the same way.