For the first time, an appeal court has upheld a claim that (direct) discrimination because the claimant was perceived to have a disability is unlawful under the Equality Act. The claimant did not need to show she actually had a disability. The court also discussed the boundaries of direct discrimination. (More on Perceived disability).
June 2019, Court of Appeal. Full judgment: www.bailii.org/ew/cases/EWCA/Civ/2019/1061.html
The claimant was a serving police officer. She requested a transfer from Wiltshire to Norfolk Constabulary. At the medical it was found she had some hearing loss with tinnitus. The impairment meant she fell just short of National Recruitment Standards. However guidance made clear that this standard was not binding – candidates should be looked at individually and assessed in terms of ability based on activities of an operational constable.
When she had joined Wiltshire they found a similar level of impairment, but they had arranged a practical functionality test which she passed, and she had successfully worked for them as a police constable.
The medical advisor to Norfolk similarly recommended an assessment of her effectiveness to work in an operational environment. However the Norfolk Constabulary refused, and turned down her application to transfer. It was concerned the claimant might not be a fully operational officer and so might have to be placed on restricted duties. This would cause difficulties because of the need to have a fully operational force while operating under financial constraints. (In fact she would not have to be placed on restrictive duties if she passed the operational test recommended, and as regards the future there was medical evidence that her hearing levels were stable.)
The employment tribunal held there was direct discrimination contrary to the Equality Act. The claimant was treated less favourably because of her perceived actual or potential disability.
Held by the Court of Appeal:
- Her claim succeeded. The Equality Act includes direct discrimination because of a perceived disability. In this case the employer perceived her to have a ‘progressive condition’ which the Act treats as a disability.
- There was direct discrimination despite the fact that the employer was concerned about her abilities, because the employer’s misperception flowed (in significant part) from a stereotypical assumption about the effects of disability.
The parties agreed – and the Court of Appeal said it agreed – that for there to be a perceived disability, the discriminator must believe that all the elements in the statutory definition of disability are present. However it is not necessary that he or she should attach the label ‘disability’ to them. As the Employment Appeal Tribunal (bailii.org) had said in the present case:
‘The answer will not depend on whether the putative discriminator A perceives B to be disabled as a matter of law; in other words, it will not depend on A’s knowledge of disability law. It will depend on whether A perceived B to have an impairment with the features which are set out in the legislation.’
One consequence of this is that the technical definition of disability is important, including in this case Sch 1 para 8 (below) which treats a ‘progressive condition’ as a disability, and case law saying that ‘normal day-to-day activities’ (below) should be interpreted to include the activities which are relevant to participation in working life.
Another consequence is that it did not matter that the employer did not know the legal definition of disability (below), or misunderstood it.
In this case the employer did not perceive the claimant to have an impairment which currently had a substantial long-term effect on normal day-to-day activities. It was concerned she might be unable the full range of duties in future. However various provisions of the Equality Act expand the basic definition of disability, including Sch 1 para 8 which says that a ‘progressive condition’ is treated as having a substantial effect on normal day-to-day activities at the time of the discrimination if it is likely to (in the sense of could well have) such an effect in future. The condition just needs to have some effect (less than substantial) on normal day-to-day activities at the time of discrimination.
Here the employer thought her hearing impairment could well render her unable to perform the duties of a front-line officer in future. Therefore, as discussed in the next heading, it perceived that her impairment could well have substantial effects on normal day-to-day activities in future. Also the employer perceived that her impairment had some effect at present. The result was the employer perceived her to have a disability within Sch 1 para 8.
Normal day-to-day activity
The Court of Appeal held that the employer’s belief that the claimant might become incapable of performing front-line duties was a belief about her ability to carry out ‘normal day-to-day activities’.
The employer had argued against this, saying the requirements of the role of a front-line police officer were exceptional or unique in character. The employer referred to paragraphs D8-D10 the ODI Guidance which gives examples of ‘specialised activities’ falling outside the scope of normal day-to-day activities, such as the delicate manipulations required by a watch-repairer or playing the piano to concert standard.
The Court of Appeal agreed with the court below that in the light of the Ring and Paterson cases, the phrase ‘normal day-to-day activities’ should be given an interpretation which encompasses the activities which are relevant to participation in working life (Normal day-to-day activities>EU law…).
What of the employer’s argument that front-line police duties are not normal, and are more akin to the highly specialised capabilities required of a watchmaker or concert pianist? The court said it was concerned here with a hearing impairment, and there was no evidence that front-line officers need to have peculiarly acute hearing. It said “they are not piano-tuners or audio engineers”. There would be occasions in their duties when it was important to be able to “listen carefully or hear particular sounds (even if not a fly’s foot-fall), but that is characteristic of many situations both at work and outside it.” The work of a front-line police officer was in many respects unique, but the multifarious activities it involves – at least those for which good hearing is relevant – are “normal day-to-day activities” within the Equality Act.
Did not matter that employer unaware of legal definition of disability
Since her duties as a front-line officer were a normal day-to-day activity, it followed that the employer’s belief that the claimant’s hearing loss would render her unable to perform these duties was a perception that the impairment would have a substantial effect on her ability to carry out normal day-to-day activities. It was therefore a perception that she had a disability under Sch 1 para 8.
The decision-maker at the employer, an Acting Chief Inspector, considered she had a basic knowledge of the Equality Act definition of disability. She argued that she certainly did not believe the claimant to be disabled. The claimant was an operational front line officer in Wiltshire, and the Acting Chief Inspector was advised of no other restrictions, meaning that the claimant was able to operate to the high physical and mental requirements that are placed upon such front line officers. The Acting Chief Inspector said there was simply no way that she considered that the claimant’s marginal failure of such tests would have such an impact on the claimant’s daily life that it would mean she was disabled.
However the Acting Chief Inspector did not know of the full legal definition of disability, including on ‘progressive conditions’ and the meaning of ‘normal day-to-day activities’. The facts as perceived by her would mean the claimant did have a disability within the legal definition. Accordingly she perceived the claimant to have a disability.
The Court of Appeal also held that the employment tribunal was entitled to find there was direct discrimination. For the statutory provisions on direct discrimination, see Direct discrimination>Technical definition.
The court considered the best way to formulate the employer’s argument was that the claimant was rejected because she would be unable to perform a front-line role. This would be a paradigm claim for discrimination arising from disability under s.15 EqA for which the employer might claim justification, rather than direct discrimination. (The claimant had not claimed discrimination arising from disabilty, perhaps because it is generally thought to require an actual rather than perceived disability. See further below My comments>Perceived disability may be limited by boundaries of direct discrimination).
However the Court of Appeal rejected the employer’s argument, citing the court’s previous (2010) decision in Aylott:
‘Direct discrimination can occur, for example, when assumptions are made that a claimant, as an individual, has characteristics associated with a group to which the claimant belongs, irrespective of whether the claimant or most members of the group have those characteristics. ….’
‘The council’s decision to dismiss the claimant was based in part at least on assumptions that it made about his particular mental illness rather than on the basis of up-to-date medical evidence about the effect of his illness on his ability to continue in the employment of the council.’
The Court of Appeal held that an employer’s concern about the ability of a disabled claimant to do the job may constitute direct discrimination if it is significantly influenced by a stereotypical assumption about the effects of the disability.
Was that so in the present case? The tribunal had found, and was entitled to find, that the employer acted on the basis of a stereotypical assumption that the claimant’s hearing loss would render her incapable of performing front-line duties. The reasons justifying this were:
- the Acting Chief Inspector had disregarded not only Home Office guidance about the importance of individualised assessment but also the recommendation by her own Force’s medical adviser that the claimant undergo an at-work test;
- the tribunal explicitly rejected the only reason that the Acting Chief Inspector advanced in evidence for thinking that someone who was capable of front-line work in Wiltshire would not be capable of it in Norfolk;
- that being so, the Acting Chief Inspector had acted irrationally, and it was accordingly a natural inference that she was motivated, at least in part and perhaps only subconsciously, by a stereotypical assumption that officers with hearing loss could not be up to the job: otherwise why not let the claimant do the at-work test and see?
- under s.136 (shift of burden of proof), if there were facts from which a finding of discriminatory motivation could be made the burden was on the employer to disprove them.
The Court of Appeal added:
‘I would emphasise that it does not follow that a claim of direct discrimination can be brought in the generality of cases where an employee suffers a detriment because they are (or are perceived to be) unable to do the work required by the employer, or do it to a sufficient standard, as a result of disability: on the contrary, such cases will typically have to be brought under section 15 (if available), and the employer will have the opportunity to seek to justify the treatment complained of.’
May not be direct discrimination if employer simply makes a genuine mistake
The Court of Appeal said the Employment Appeal Tribunal in this case took the view that if the employer simply made an error about what the test results meant in terms of the claimant’s ability to do the job, it would not be direct discrimination. The claimant’s lawyer was happy to accept this was so. The claimant’s lawyer acknowledged that in the typical case where a person is refused a job – or indeed is dismissed or suffers any other detriment – because they are unable to meet a performance standard in consequence of a disability, they will have no claim of direct discrimination and will have to claim under section 15. In answer to a question from one of the Court of Appeal judges, the claimant’s lawyer acknowledged also that this would be the case if they were not in fact disabled but were perceived to be as a result of a ‘genuine mistake’.
However in the present case the misperception was not simply a mistake but flowed (in significant part) from a stereotypical assumption about the effects of disability. So there was direct discrimination.
The employer argued the tribunal never considered under s.13 and s.23 EqA whether the employer would have treated another would-be transferor, with the same abilities, in the same way. The court rejected this argument:
“The first point to make about that submission is that it is now very well established that the comparison exercise under section 13 (1) (the so-called “less favourable treatment” question) does essentially the same job as asking whether the treatment complained of was “because of” the protected characteristic (the so-called “reason why” question), and that if the latter question is answered the answer to the former will normally follow.”
In any event the tribunal did address the question of the correct comparator. If the employer was indeed motivated by a stereotypical and incorrect assumption that the claimant’s hearing loss prevented her from carrying out the role of a front-line officer, s.23 could not help the employer: the correct comparison is with how a person about whom no such assumption was made would have been treated.
Perceived disability discrimination can be unlawful
The Coffey case is important as being (I believe) the first decision at appeal level to uphold a claim for perceived disability discrimination. The Employment Appeal Tribunal held this in 2017, and the Court of Appeal had now upheld their decision.
Though the court left the issue open, claims for perceived disability are not likely to apply to reasonable adjustment claims or discrimination arising from disability (s.15). See Perceived discrimination>Limited to ‘direct discrimination’ and harassment. For a consequence of this, see below Perceived disability may be limited by boundaries of direct discrimination.
It is not enough that the discriminator saw the claimant as being ‘disabled’ in some vague sense. The decision sets the benchmark for perceived disability as being whether the claimant was perceived as having the characteristics set out in the legal definition of disability – but the discriminator does not need to know that those characteristics mean the person legally has a disability.
There is more comment on the consequences of this case on my Perceived disability page.
Normal day-to-day activities
The case is also interesting for its approach to deciding whether duties are akin to the highly specialised capabilities required of the watchmaker or concert pianist mentioned in paragraphs D8-D10 the ODI Guidance. If duties are akin to these they may not be ‘normal day-to-day activities’, subject to any EU law argument to the contrary.
The court focussed on the type of impairment, here a hearing impairment. It said that peculiarly acute hearing is not required for police duties. Police officers ‘are not piano-tuners or audio engineers’.
Perceived disability may be limited by boundaries of direct discrimination
If it is correct that one cannot claim s.15 discrimination based on perceived disability (Perceived discrimination>Limited to ‘direct discrimination’ and harassment), the court’s decision on the boundaries of direct discrimination (s.13) is particularly important, because the claimant does not have the alternative of a claim under s.15.
Therefore in a perceived disability case where the person is turned down because of their perceived abilities, there may be no claim at all unless the employer’s concern about their ability to do the job is significantly influenced by a stereotypical assumption about the effects of the disability. Unfortunately the boundaries of this are rather unclear: Direct discrimination>What counts as a stereotypical assumption?
As to implications for stammering, see Perceived Disability>Applying ‘perceived disability’ to stammering.