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December 2017, Employment Appeal Tribunal (EAT). Full judgment: www.bailii.org/uk/cases/UKEAT/2017/0260_16_1912.html
For the first time, an appeal tribunal has upheld a claim that (direct) discrimination because the claimant was perceived to have a disability is unlawful under the Equality Act. The claimant therefore did not need to show she actually had a disability. The appeal tribunal also said it was sufficient if she was perceived to have a potential disability. (More on Perceived disability).
The claimant was a serving police officer. She requested a transfer from Wiltshire to Norfolk Constabulary. At the medical it was found she had a 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 assesed 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 succesfully 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 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 Employment Appeal Tribunal (EAT): the Equality Act includes direct discrimination because of a perceived disability, and even something perceived as a potential disability. The employment tribunal was entitled to decide there was unlawful direct discrimination in the present case.
The EAT said there was little dispute that the Equality Act is sufficiently broad to encompass a person being treated less favourably because the discriminator perceives them to have a protected characteristic. The EAT said this includes the protected characteristic of 'disability'.
That does not mean it will necessarily be straightforward for a tribunal to decide whether a putative discriminator perceived a person to be disabled. Some potential difficulties were discussed in J v DLA Piper (at para 62).
The EAT said that whether A discriminates against B because of a perceived disability 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, ie in the Equality Act definition of 'disability'.
The EAT also held it was sufficient if the claimant was seen as having a potential disability. In other words, even if the impairment was not perceived as currently having a substantial adverse effect, the perception was that it could well have a substantial effect in future.
Accordingly, even if the claimant was not perceived to have to go on restricted duties immediately, it was sufficient that the Acting Chief Inspector perceived she might well have to go on restricted duties in future. The EAT gave three reasons for this:
'...(1) This approach is consistent with paragraph 8 of Schedule 1 [Equality Act 2010] relating to progressive conditions. In my judgment the word "likely" in this paragraph, as elsewhere in the Schedule, means "could well happen"; an employee will be disabled if the impairment, though not presently giving rise to a substantial adverse effect, could well do so. (2) This approach is also consistent with the definition of disability in Ring; the definition envisages not only cases where the limitation does hinder full and effective participation in professional life but also cases where it may do so. (3) There would be a gap in the protection offered by equality law if an employer, wrongly perceiving that an employee's impairment might well progress to the point where it affected his work substantially, could dismiss him in advance to avoid any duty to make allowances or adjustments.'
As regards the claimant's actual condition, there was medical evidence that her hearing levels were stable.
The EAT said perceived disability does not depend on the employer's knowledge of the Equality Act definition. There was perceived disability even though - due to her lack of understanding of the full Equality Act provisions - the Acting Chief Inspector for Norfolk who rejected the claimant thought she did not have a disability within the Act.
The Acting Chief Inspector considered she had a basic knowledge of the Act, and said she did not see the claimant as actually or potentially disabled because the impairment did not have a substantial adverse effect on normal day-to-day activities. However the Acting Chief Inspector considered the claimant might have to be placed on restricted duties. She saw the claimant as being at least potentially a 'non-disabled permanently restricted officer'.
The EAT said the Acting Chief Inspector did not realise that under Schedule 1 para 8 of the Act a progressive condition which could well have a substantial effect in future could be seen as a disability now. The EAT also pointed out (and similarly the Acting Chief Inspector may well not have realised this) that under the EU Court decision in Ring the impairment would necessarily be seen as having the required substantial effect if it meant the constable was put on restricted duties. Since the Acting Chief Inspector perceived that the constable might well have to be put on restricted duties, legally the Acting Chief Inspector perceived the constable to be disabled within the Equality Act.
(The Ring decision defines disability as 'a limitation which results in particular from physical, mental or psychological impairments which in interaction with various barriers may hinder the full and effective participation of the person concerned in professional life on an equal basis with other workers.')
The EAT 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 Norfolk Constabulary argued that if the present case was direct discrimination, it would be difficult for any employer to set required standards, even if they were justified.
The EAT disagreed. To meet the statutory definition of direct discrimination, the claimant must be treated less favourably than someone else would be where there was no material difference between the circumstances of the two people, including their abilities. The EAT said that therefore if the claimant really lacks the ability in question - eg a particular typing speed - there is no direct discrimination, though the claimant may (if they have an actual rather than perceived disability) be able to claim under s.15 Equality Act if the employer is not justified in requiring that ability. It is different though if, as in the present case, the person really has the ability:
'Suppose for example a woman who is blind, and is rejected because the employer wrongly believes that because of her blindness she will not be able to type at a required speed. Section 23(2)(a) requires her actual abilities to be taken into account; it does not provide any warrant for the employer's flawed belief in her lack of ability to be taken into account as a material difference. A stereotypical and incorrect assumption that a claimant has characteristics associated with a disability may found a claim for direct discrimination: see Aylott at paragraph 46.
In the present case, the hypothetical comparator would be a person who was not perceived to be disabled - that is, whose condition was not perceived as likely to deteriorate so that they would require restricted duties - and who had the abilities which the claimant had.
This case is important as being (I believe) the first decision at appeal level to uphold a claim for perceived disability discrimination.
Though the EAT 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.
The decision sets the benchmark as whether the claimant was perceived as having the characteristics set out in the legal definition of disability - so broadly whether the claimant had a physical or mental impairment which has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities, but also (it seems) taking in all the futher legislation and case law which modifies and interprets that. (However, there are arguments that a wider test may be permissible.)
On the one hand therefore, it is not enough that the discriminator saw the claimant as being 'disabled' in some vague sense.
On the other hand, the discriminator does not need to know the legal definition of disabilty, and if they do know it to some extent (as did the employer in this case) it does not matter if their knowledge of it is mistaken or incomplete. The employer in the present case thought the impairment was outside the Equality Act because it would not have a substantial effect on normal day-to-day activities. The employer did not know of the Equality Act provisions on progressive conditions (Schedule 1 para 8, below), nor probably that under the European Court decision in Ring (and some UK decisions based on European decisions) it would necessarily be seen as having a substantial effect if the claimant went on restricted duties. The claimant was therefore perceived to be disabled.
Since it is the detailed definition of disability which is relevant (ie including all the detailed provisions in the Equality Act which modify the basic definition), the EAT took into account EqA Schedule 1 para 8. This applies to a person who has a 'progressive condition' resulting in an impairment which has (or had) an effect - albeit not substantial - on their ability to carry out normal day-to-day activities. If the condition is likely to result in there being a substantial effect in future (the EAT interpreted this in line with SCA Packaging v Boyle as meaning 'could well result'), the effect should be seen a substantial now, so it is a disability now. The employer's perception that the claimant could well become subject to restricted duties (which would be a substantial effect) in future meant the employer perceived her as having a disability now, within para 8.
This conclusion can be criticised on the facts of the case, in that the EAT does not seem to have considered whether the employer perceived the impairment as having some effect on normal day-to-day activities now, albeit not substantial. This is a requirement for para 8 to apply.
Even if para 8 did not apply, because there was no current actual or perceived effect on normal day-to-day activities, the decision raises the interesting question of whether discrimination because of a potential future disability (actual or perceived) would be unlawful under the Equality Act. It might be argued that the wording of the Act is wide enough to include this, and the second and third reasons given by the EAT for accepting perceived potential disability as within the Act (Ring case, and gap in the law), seem to support it. However, this is not clear, as the EAT largely based its reasoning on para 8. See also possible arguments for a wider test.
As to implications for stammering, see Perceived Disability>Applying 'perceived disability' to stammering.
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