Ms Coffey, a police officer employed by Wiltshire Constabulary suffered from hearing loss and tinnitus. On paper this meant she did not meet the standard required to join the force, but the Constabulary arranged for a practical functionality test which she passed and she subsequently successfully undertook front line duty. Two years later when she applied to transfer to Norfolk Constabulary she disclosed the hearing problem and the report on the functionality test. Despite Norfolk Constabulary being told her hearing was not deteriorating and that it could be assumed she would pass a further practical test, her application to transfer was refused. One reason for the refusal was that Ms Coffey may need to be put on restricted duties at a later date if the condition deteriorated.
Both the employment tribunal and the EAT upheld her claim for discrimination based on Norfolk Constabulary's perception of her condition. The Court of Appeal agreed, dismissing the appeal by the Norfolk Constabulary.
In a claim for perceived disability discrimination the putative discriminator (the constabulary) must believe that all elements in the statutory definition of disability are present. That does not depend on the constabulary having knowledge of disability law, rather it depends on whether Miss Coffey was perceived by the constabulary to have an impairment with the features set out in the legislation - i.e. an impairment that has a substantial and long term adverse effect on the claimant's ability to carry out normal day to day activities. As their concern was about her ability to carry out frontline policing, it therefore needed to be established whether or not the activities involved in frontline policing were "normal day to day activities".
Before the court the constabulary argued that the activities of a frontline police officer were not "normal". However, there had been no evidence before the employment tribunal that front-line officers need to have particularly acute hearing and the court concluded that the activities involved in the role were normal day to day activities for the purpose of the Equality Act 2010. What is more, the belief that Miss Coffey's hearing loss would render her unable to perform the duties of a frontline officer in the future was a perception that it would have a substantial adverse impact on her ability to carry out normal day to day activities.
The court then had to consider whether refusing someone employment because of a perception of a risk of future inability to work fell within the terms of the Equality Act. The employment tribunal had found that it did because the constabulary in effect believed Miss Coffey was suffering from a progressive condition. Under the Equality Act a progressive condition is to be treated as having an immediate substantial adverse impact on the ability to carry out day to day activities even if that is not yet the case at the date discrimination takes place. The court were satisfied that the Act covered the circumstances of this case.
This case is a significant but not surprising precedent for claims of perceived direct disability discrimination. It is worth contrasting this with perceived disability in the context of a reasonable adjustments claim. In Copal Castings Ltd v Hinton UKEAT/0903/04/TM both Mr Hinton and his employer believed him to suffer from Type 1 diabetes. It was accepted that this was a disability. He requested adjustments to his working hours, which were refused and he subsequently resigned. By the time of the tribunal hearing it became apparent that he, in fact, suffered from Type 2 diabetes which can be managed by diet and is not a disability. Despite that the tribunal found there had been a failure to make reasonable adjustments. On appeal the company argued that the case should be judged on its true facts and not the perception of the parties at the time. The EAT held the DDA (which was the relevant legislation at the time) only applied to "a person who has a disability" and not to someone who believed he had a disability. Accordingly, the appeal was upheld on that point. However, employers should be aware that, in all other forms of discrimination protection, liability will arise on the basis of perception alone.