If a non-disabled job applicant is rejected because of a perception or anticipation that a condition could become a disability in future, is this direct disability discrimination?
Disability discrimination by perception
In an Employment Appeal Tribunal case, Chief Constable of Norfolk v Coffey, it was upheld that disability discrimination by perception is still direct discrimination.
The Claimant was a serving police officer in Wiltshire Police who applied for a transfer to the Norfolk force. She had a degree of hearing loss, which would usually have disqualified her from recruitment when she joined the Wiltshire force, but she was accepted after a function test.
Norfolk Police rejected her transfer request because her hearing was just below the acceptable standard, without a function test, based on concerns that she might end up on restricted duties should her hearing deteriorate.
The tribunal found that this decision was direct discrimination based on a perception that the Claimant would be disabled in the future. The hypothetical comparator would be a candidate whose condition was not perceived as likely to deteriorate so as to require restricted duties.
Kate Fretten, Partner in Frettens' Employment Team, explains “The Employment Appeal Tribunal noted that there would be a gap in the protection offered by equality law if an employer, wrongly perceiving that an employee's impairment might progress to the point where it affected their work substantially, could dismiss them in advance to avoid any duty to make allowances or adjustments.”
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