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Posted 25 June 2019
by Stephen Jennings

Disability Discrimination – Without the Disability

Disability discrimination

A new Court of Appeal decision highlights the unusual case of an employee who successfully brought a disability discrimination claim even though she is not, and is not likely ever to be, disabled.

Background to the claim

C was employed by Wiltshire Police. She suffered from hearing loss with tinnitus. Whilst her hearing fell below the National Recruitment Standards, Wiltshire Police (following the accompanying guidance) allowed her to take a practical hearing test which she passed. She then worked as a front-line police constable without difficulty or any need for adjustments.

Problems arose though when she applied to transfer to Norfolk Police. They asked her to undergo a medical, which stated her hearing was “just outside the standards for recruitment strictly speaking”. The medical noted that the results of audiograms conducted in 2011 and 2013 were very similar, the implication being there had been no deterioration. Notwithstanding this and a recommendation she be given a work trial, Norfolk Police declined the transfer, taking the strict view that C’s hearing fell below regulation standards.

In the claim that followed, Norfolk Police gave a statement to the effect that:

  • They did not believe her to be disabled as there was no substantial adverse effect on her ability to carry out normal day-to-day activities and this was not suggested by the medical
  • However it was not appropriate to knowingly risk increasing the pool of officers who were only able to undertake restricted duties

Although C accepted that she is not disabled, she still brought a claim for direct perceived disability discrimination.

Judgment

The Judgment is detailed and complex but, in summary of the key points:

  1. The definition of ‘normal day-to-day activities’ includes activities relevant to participation in working life. The Police’s belief that C’s hearing would, currently or in the future, render her unable to perform the duties of a front-line police officer was therefore a perception that her poor hearing would have an effect on her ability to carry out normal day-to-day activities.
  2. Whilst the Police statement was to the effect that C was not currently considered disabled, the Police believed there was a risk C may at some time in the future become unable to perform her duties due to her hearing. As this amounted to a perception that her ability to carry out normal day-to-day activities may be substantially impaired in the future, this was a perceived future disability.
  3. Disability legislation covers progressive conditions by treating anyone likely to be disabled as if they are currently disabled. So, as C was perceived to have a progressive condition, she was treated as if she was disabled now – and the Police lost.

Learning Points

The decision raises some interesting points:

  • The Police should clearly have taken more trouble to read the medical information on which they relied! This made it clear that C’s hearing was not in fact deteriorating and could have been appointed.
  • As C is not currently disabled, they could potentially have successfully defended the discrimination claim had they simply said they were not prepared to appoint someone who did not pass the hearing test. However in justifying this by referring to the future risk of her being put on restricted duties, they brought themselves within scope of discrimination legislation.
  • The case serves as a warning to employers that a perception of likely future disability is enough to bring a claim. It is not sufficient to avoid a claim merely to establish that the employee is not currently disabled.

If you have any queries either about this case or any other employment law related issue, please contact our specialist employment team on 01392 207020 or email employment@tozers.co.uk.

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About the author

Stephen Jennings

Partner and Solicitor

Partner in the litigation department specialising in employment law, he is the relationship manager for many of the firm's employment clients