The UK Employment Appeals Tribunal has ruled that perceiving a non-disabled employee to be disabled, and thus treating them less favourably constitutes discrimination under the Equality Act 2010.
The case was taken by a police officer after she was refused a transfer from Wiltshire to Norfolk on the basis that she did not meet hearing standards for recruitment. The claimant had her hearing tested in 2011, showing that she suffered from bilateral mild sensori-neutral hearing loss with tinnitus. The guidance in Medical Standards for Police Recruitment stated that if hearing loss was only below standard in one ear, or if the test was borderline, consideration should be given to a practical test of hearing, and that candidate should be fully assessed in terms of ability based on their role and functions. The Wiltshire Constabulary followed this guidance and arranged a functionality test which the claimant passed and she worked as a police officer with no adverse effects.
When the claimant wished to move to the Norfolk area, she disclosed that she had some hearing loss and included the reports from the functionality test. She passed the interview stage and underwent a medical exam, showing that her hearing issues had not worsened since her assessment in 2011. However, the Chief Inspector declined the claimant’s application citing that her hearing was below the medical standard.
The Equality Tribunal ruled in favour of the claimant, acknowledging that sections 13 and 39 of the Equality Act 2010 were broad enough to include the concept of direct disability discrimination by perception. The Chief Constable of Norfolk then appealed the case on a point of law to the Employment Appeals Tribunal to assess whether the Employment Tribunal had correctly applied the law and given sufficient reasoning for its decision.
In its judgement, the Appeals Tribunal concurred with the Employment Tribunal. Judge David Richardson considered Section 13 of The Equality Act 2010, stating that its scope was indeed broad enough to encompass perceived discrimination and that it made no distinction between a protected characteristic of a disability and other protected characteristics. Judge Richardson also referenced that the European Court of Justice had consistently said that the Equality Directive was not to be interpreted restrictively and was to apply to persons who suffer less favourable treatment by virtue of a particular characteristic, even if those persons do not themselves have the protected characteristic.
The Judge also applied a hypothetical comparison in where a person who was not perceived to be disabled and whose condition was not perceived to deteriorate, would indeed have been treated more favourably than the Complainant. The Judge ruled that the Employment Tribunal did not err in law in concluding that the complainant had been subject to direct discrimination.
This is the first UK appeal decision upholding a claim for perceived disability discrimination.
Click here for a copy of the judgement.
Click here for the Equality Act 2010.