Disability Discrimination: Perceived Disability

THE FACTS

Mrs Coffey is a police officer in the Wiltshire Constabulary. At the time of her recruitment, her hearing was slightly below the national standard required for police. However, she passed a practical functionality test, she was recruited, and her hearing has never caused her any problems in doing her job.

Mrs Coffey applied to transfer to the Norfolk Constabulary. She was open about her hearing problems, and medical tests and advice confirmed that her hearing levels were stable. Despite this, her application for a transfer was rejected because of her hearing. Acting Chief Inspector Hooper explained in the subsequent tribunal claim that, given the need for the police to provide services with fewer officers, there was a concern about recruiting a non-disabled officer who would be restricted in duties as this would reduce the pool of officers who are operationally deployable.

Mrs Coffey brought a direct discrimination claim against the Chief Constable of the Norfolk Constabulary. She did not claim to have a disability, but that she had been treated less favourably because she was perceived to have a disability. This perceived disability, she claimed, was a progressive condition that could well develop to the point of having a substantial impact on her ability to carry out day to day activities. Her claim was successful and she was awarded £26,616.05 and the tribunal made recommendations.

Norfolk appealed to the EAT, which dismissed the appeal. Norfolk then appealed to the Court of Appeal.

In a claim of perceived disability, the alleged discriminator must believe that all the elements in the statutory definition of disability are met, though it is not necessary that they should attach the label "disability" to them. Norfolk argued that the tribunal's findings about ACI Hooper's thought processes could not support a conclusion that ACI Hooper believed that all the elements of the definition of "disability" had been met. The requirements of the role of a frontline police officer were exceptional, according to Norfolk, and could not be said to be "normal day to day activities" (an element of the statutory definition of disability). However, the court disagreed with this: there had been no evidence that front-line police officers needed particularly acute hearing. The activities for which good hearing were relevant were therefore normal day to day activities, meeting that element of the statutory definition. Norfolk also argued that it...