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Perceived Disability Discrimination
Disability is one of the protected characteristics under the Equality Act 2010 if “A person (P) has a disability if P has a physical or mental impairment, and the impairment has a substantial and long-term adverse effect on his/her ability to carry out normal day-to-day activities”.
Direct discrimination occurs where an employer treats P less favourably than it treats or would treat others, because of a protected characteristic. It is generally accepted that a claim can be made where P does not actually have a protected characteristic, but the employer perceives P as having that protected characteristic. However, these claims are difficult to win because P needs to satisfy the multiple elements of the definition of disability, such as whether the employer perceived the impairments to be serious or long term enough to satisfy the statutory definition.
In a recent case, a police officer had hearing difficulties that placed her just outside the police standards. She took a hearing test which she passed and she worked without any adjustments being made.
She applied for a transfer to another force. She took another hearing test, again passing, which showed her hearing had not deteriorated since the last test, however, her transfer application was rejected because she did not meet the national standard.
She made a tribunal claim stating that she was perceived her as having a disability and that the decision to reject her transfer application was direct disability discrimination.
The claim was defended on the basis that she did not meet the statutory definition of disability. The decision to reject her application was because the police force operated under significant cost and resourcing pressures and therefore could not justify appointing someone who fell outside the national standards and who might not be fully operational.
The tribunal upheld her claims. It said the police perceived that she had an actual or a potential disability which could lead them to having to make adjustments to her role, immediately or in the future, and this amounted to direct discrimination.
The police force appealed but the appeal was not upheld. They argued that it was not enough that they may have perceived that the police officer might become disabled at some date in the future. The EAT said that the evidence showed they perceived that the police officer’s condition could well progress to the extent that she would need to be placed on restricted duties, so they had perceived that she had a disability in the sense of a progressive condition.
This is the first case under the Equality Act dealing with perceived disability discrimination. Whilst it requires a tribunal to carefully analyse whether a person perceives another to be disabled, it shows that claims based on a perceived disability can be brought as direct discrimination claims.
If you would like to discuss this issue, or any other employment issue please contact one of our Employment law specialists on 01206 217347 or alternatively email me on email@example.com.