So, here we are: January. Christmas has come and gone and the warm lights of December have been replaced with the wind and rain of January. Sigh. But anyway, how was your Christmas? I hope it was a time of rest and good health.

My Christmas? As usual, it was filled with random discussions around the Christmas dinner table including, as ever, conversations about weird and wonderful Employment Law cases. In particular, some of my family members were shocked to hear that a non-disabled employee can suffer disability-related discrimination. One even suggested that I make the subject into a blog when I returned to work and, me being me, I couldn’t resist such an invitation…

So what am I talking about? Well, this was the case of Chief Constable of Norfolk v Coffey which concerned a female police officer who applied for a job in another police force. The police officer had a progressive hearing condition with tinnitus which, going forward, would continue to worsen. When originally recruited for her current police force, she failed the meet the usual criteria for police recruitment due to her low level of hearing but, after the police force arranged a practical functionality test, she was passed for duty and assigned for front-line duties. There were no concerns over her performance during her time in the role.

The issues started in 2013 when she applied to transfer to a new police force. As was standard, she attended a pre-employment health assessment. The medical practitioner concluded that, whilst her hearing level was technically just outside the usual police force parameters, she performed her current role with no difficulties and a practical functionality test was recommended. However, the new police force refused to follow this recommendation and, instead, declined her request to transfer due to her hearing below the recognised standard and, rather importantly, commented that it would not be appropriate to accept a candidate outside of the recognised standard of hearing because of the risk of increasing the pool of police officers placed on restricted duties.

We can all probably see where this is going. Sure enough, the Claimant lodged a claim with an Employment Tribunal for direct discrimination on grounds of disability. However, this was a rather unorthodox claim because her claim wasn’t that she currently had a disability but, rather, that she was discriminated against because she was perceived as having a disability by having a health condition that, eventually at some point in the future, could become a disability.

The Tribunal considered the arguments and held that the police force’s comment concerning the risk of the Claimant ending up on restricted duties supported the view that they viewed the Claimant’s hearing condition as a potential or actual disability which, down the line, would lead to the police force having to make suitable adjustments to her role. Due to this being the main reason for turning down her transfer to the new police force, the Tribunal held that the Claimant was correct in that she had been directly discriminated against.

The police force appealed the judgment to the Employment Appeal Tribunal (EAT), mainly on the fact that they didn’t believe she had a disability at the time of making the decision. The EAT also found in favour of the Claimant. Importantly, the EAT held that an employer can discriminate by way of perceiving a future disability even where they don’t believe the employee has a disability under the Equality Act 2010 at the relevant time if they believe or understand that the condition is progressive and likely to become a disability in the future.

Now, some may scoff and say that, surely, anti-disability discrimination legislation is only there to protect those that are currently disabled and widening it in this way will ‘open the floodgates’. It is certainly true that the majority of disability discrimination claims are brought by those who first demonstrate that they are disabled under the Equality Act 2010 definition.

However, in reality, the Tribunal (and EAT) have helped plug a potential loophole in the law here. What loophole? Well, if the case had been decided differently, employers could foreseeably aim to dismiss and/or subject an employee to detriment in circumstances where it is believed that a health condition will worsen into a disability in the near future but hasn’t as of that moment. Would it be within the purpose of the legislation (i.e. to protect individuals with serious health conditions from negative treatment) to allow employers to pre-empt a disability and dismiss them based entirely on that fact before they are classified as disabled and obtain the accompanying anti-discrimination law protection? No, not really.

The reality, however, is that this is a unique case. It is rare that an employer will actually give a reason directly linked to a progressive health condition as the reason for rejecting a job application and/or subjecting an individual to a detriment. Rather, the majority of discrimination tends to arise where a false reason is given to cover up the real reason and, in those cases, this judgment is unlikely to hold much sway.

So there we go, a lovely employment law nugget from the Christmas table but minus the calories!