When Can a Non-Disabled Employee Claim Disability Discrimination?

A recent case before the Employment Appeal Tribunal (EAT) considered perceived disability discrimination in the context of progressive conditions.

Disability is one of the protected characteristics under the Equality Act. A person will be disabled if they have a physical or mental condition which has a substantial and long term adverse effect on their ability to carry out normal day to day activities. The definition of a disability can include a progressive condition whereby an individual has a condition which is likely to have a substantial effect on their abilities in the future.

It is unlawful discrimination to subject a person to less favourable treatment because of their disability. It is also unlawful discrimination to treat a person less favourable because of a perception that that person has a disability. In these circumstances, a person who is not disabled could bring a claim for disability discrimination.

In the case before the EAT (Chief Constable of Norfolk v Coffey), Mrs Coffey was a constable in the Wiltshire police force. She had some hearing loss but was able to work for Wiltshire police as she had passed a practical functionality test which confirmed that she could work as a constable without any adjustments. However, when Mrs Coffey subsequently applied to transfer to the Norfolk Constabulary her application was rejected without a practical functionality test on the basis that she did not meet national standards.

The EAT noted that the evidence in the case clearly demonstrated that the decision to reject Mrs Coffey’s application was based on a perception that her condition could progress to the extent that she would need to be placed on restricted duties at some time in the future. In the circumstances the EAT confirmed that Mrs Coffey had been subjected to discrimination based on a perception that she would be disabled in the future.

This case underlines the complexity of discrimination law. Employers will need to be aware of the potential for disability discrimination claims even in circumstances where an employee is not actually disabled.