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Perceived disability
[ch 7: page 212]A claim can be brought for direct perceived disability discrimination. This is where someone suffers less favourable treatment because an employer mistakenly assumes that they are disabled:
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 her hearing loss might deteriorate. 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 that the hearing loss was only mild and engaged in direct perceived disability discrimination by treating Coffey less favourably because of a mistaken belief that it was a progressive condition.
Chief Constable of Norfolk v Coffey [2017] UKEAT/0260/16
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 241) and the duty to make reasonable adjustments (see page 243). In both categories of claim, the claimant must have the disability in order to bring a claim. Perceived disability is not enough.