The First Case on ‘Perceived Disability’
Mrs. Coffey is the first person to successfully bring a claim for direct discrimination based on 'perceived' disability under the Equality Act 2010.
An individual is considered "disabled" under s.6 of the Equality Act 2010 if they have a physical or mental impairment that has a substantial negative effect on their ability to do normal, day-to-day activities for 12 months or more. Disability can also cover a 'progressive condition', which gets worse over time.
When Mrs. Coffey first applied to be a police constable, she suffered a hearing impediment, meaning that she fell slightly short of the national police standards for hearing. However, she passed a 'practical functionality' test, which meant she was able to join the force with reasonable adjustments. When Mrs. Coffey applied to transfer to another Constabulary some time later, she had an updated hearing test that showed there had been no change in her hearing ability, but she was not put forward to sit another practical functionality test. The Acting Chief Inspector rejected Mrs. Coffey's application on the basis that she did not meet the hearing standards.
Mrs. Coffey lodged a claim for direct discrimination against the Acting Chief, arguing that she had "perceived" Mrs. Coffey to be disabled and rejected her application on that basis. The Acting Chief disagreed and argued that at the time she didn't believe Mrs. Coffey suffered from a disability. She rejected the application because of the strain on resources and she couldn't justify hiring someone who may not be able to carry out all of their duties.
The Employment Appeals Tribunal (EAT) considered that the Acting Chief 'perceived' that Mrs. Coffey had a 'progressive condition'. They noted that a person with the same abilities as Mrs. Coffey, who the Acting Chief did not perceive had a condition that was likely to get worse, would not have been treated in the same way.
Mrs. Coffey's case confirms that it is possible to succeed in a claim for perceived disability discrimination; however, the employee needs to establish that the discriminator (the Acting Chief in this case) perceived that the individual had a disability within the Equality Act definition at the time of the decision.