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Tribunal rules that ‘perceived disability’ was discriminatory

A police officer’s ‘perceived disability’ was ruled as discriminatory by the Court of Appeal. Refusing to employ someone because of the perception that a health condition may in the future affect their ability to work is discrimination.

Lisa Coffey worked as a police officer in Wiltshire Constabulary. She suffered a degree of hearing loss and tinnitus which did not have any effect on her work. It was also not considered to be a disability under the Equality Act.

In 2013 Lisa applied for a transfer to Norfolk Constabulary. Lisa made no attempt to conceal the fact and disclosed the condition. Additionally, the functionality test showed that she was perfectly capable of doing her existing job.

Norfolk Constabulary rejected her application for a transfer on the grounds that her hearing fell ‘just outside the standards for recruitment’ which are published by the Home Office. Norfolk Constabulary was concerned that her lack of adequate hearing may have an effect on her ability to perform day-to-day activities in the future.

Lisa took her claim to an employment tribunal in 2016 and the ruling showed that Norfolk Constabulary had not followed the advice of the Home Office. This was to conduct an individual assessment for each candidate. Neither had they acted on the recommendation from a medical officer who asked for an at-work test to be carried out.

The claimant was awarded £26,616.05 in compensation following the findings of the tribunal which showed that she had been unlawfully discriminated against on the grounds of ‘perceived disability.’

On challenging the decision, Norfolk Constabulary was told that the Employment Tribunal agreed with the previous judgement which was that they had been wrong to reject the application for transfer because they felt she would not be able to perform her duties in the future.

Both decisions were upheld by the Court of Appeal. The judgement stated that there had been no evidence of front-line police officers needing particularly acute hearing.

When making the decision Lord Justice Nicholas Underhill stated that there would be occasions in the course of duty when it would be important that a police office be able to listen carefully to different sounds, but that was characteristic of many similar situations both at work and outside it.

Lord Justice Nigel Davis agreed saying that it was not lawful to deny Ms Coffey a position at Norfolk Constabulary because she had carried out her daily duties without any problems at Wiltshire.

The front-line role which Ms Coffey had carried out at Wiltshire was no different to the job she had applied for at Norfolk Constabulary. Saying they were different was rejected outright by the tribunal. The claimant had carried out her duties in Wiltshire very satisfactorily and there was no reason to think she would do anything differently in Norfolk.

In addition to that the person who had interviewed Ms Coffey had not considered the Home Office standards and guidance for employment.

Ms Coffey has remained with the Wiltshire Constabulary.

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