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Perceived disability
[ch 7: page 198]A claim can be brought for direct perceived disability discrimination: less favourable treatment because an employer mistakenly believes that a person is disabled. This has been confirmed by the EAT in the following case:
A Chief Constable rejected a transfer application by Ms Coffey, an officer with mild hearing loss. She had been performing front-line duties without difficulty for her existing force, but the Chief Constable mistakenly assumed that Coffey’s hearing loss might deteriorate in the future, leaving the new force responsible for an officer on restricted duties. The Chief Constable rejected advice to conduct an individual hearing test and instead rejected Coffey. The EAT ruled that this was unlawful direct perceived disability discrimination. The Chief Constable knew the hearing loss was only mild and engaged in direct perceived disability discrimination by treating Coffey less favourably because of a mistaken belief that her hearing loss was a progressive condition, protected by the EA 10.
Chief Constable of Norfolk v Coffey [2017] UKEAT/0260/16
Direct perceived disability is a particular risk in the context of mental health conditions, where an employer could jump to stereotypical conclusions based on a mistaken belief about an individual’s mental health.
There can also be harassment related to perceived disability (section 26, EA 10). This is where an employer harasses an employee because they mistakenly believe they have a disability (Peninsula Business Services Limited v Baker [2017] UKEAT/0241/16/RN).
The position is different for claims for discrimination arising from disability under section 15, EA 10 (see page 230) and the duty to make reasonable adjustments (see page 231). In both categories of claim, perceived disability is not enough.