Perception discrimination is where an employer discriminates against an employee because they think the employee has a protected characteristic, such as a disability.
This form of discrimination has been considered by the Court of Appeal for the first time in Chief Constable of Norfolk Police v Coffey.
A disability is a physical or mental impairment which has a substantial and long-term negative effect on someone's ability to do normal daily activities. A progressive condition can count as a disability before it meets this test if it is likely to have a substantial adverse effect in future.
Ms Coffey was employed by Wiltshire Police as a police constable. She had mild hearing loss. This did not affect her ability to do normal daily activities, including her job. It was not a disability within the meaning of the Equality Act 2010. She applied for a job with Norfolk Police but was turned down because of her hearing loss. Norfolk Police were concerned that she would not be able to do the full job in future. The employee brought a claim for direct disability discrimination, saying she had been discriminated against because of perceived disability (her hearing loss). The Employment Tribunal and Employment Appeal Tribunal upheld her discrimination claim. Norfolk Police appealed to the Court of Appeal.
The Court of Appeal agreed with both the ET and EAT that the employee had been discriminated against. The duties of a police constable are normal daily activities. The employee was already doing the same job elsewhere. Although her hearing fell just below the national guidelines, those guidelines also said that in borderline cases an 'on the job' assessment should be undertaken. She would likely have passed this test as she was already doing the job elsewhere. The employer perceived that her hearing was a progressive condition that would stop her being able to do the job in future and refused to employ her as a result. The employer had therefore discriminated against the employee because of perceived disability.
In this case, the employer failed to follow its own industry guidelines and came a cropper as a result. There are two important lessons to take from this case. The first is to beware making knee jerk judgements about the workplace impact of impairments. The second is to read and follow your own policies and guidelines.
