Can you discriminate against a ‘non-disabled’ employee on grounds of disability?

 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.

Providing information about sickness absence in a reference ruled as discriminatory

Mr Paul Mefful began working as a volunteer at Southwark CAB in 2000. In 2003 he was employed as a general adviser and in 2004 he was promoted to senior adviser at Merton and Lambeth CAB following a competitive selection process. In May 2004 he became a specialist services manager. In (what was then) a Legal Services…

Disability Discrimination: Adjustments for candidate with Asperger’s Syndrome

In the recent case of Government Legal Services v Brookes UKEAT/0302/16, the Employment Appeals Tribunal (EAT) upheld the decision of the Employment Tribunal (ET) that requiring a job applicant with Asperger’s to take a multiple-choice test as part of the recruitment process, amounted to indirect discrimination. Background The facts of the case were that the Government Legal…

EAT Judgment: There can be no disability-related harassment claim without first establishing the disability

In the recent case of Peninsula Business Service Ltd v Baker, the Claimant had advised his manager that he had dyslexia and had also provided a psychologist’s report confirming the diagnosis. The Employer’s occupational health provider prepared a report confirming that the Claimant was likely to be considered disabled and recommended reasonable adjustments, however the Claimant’s…

Is a district judge entitled to whistleblower protection as a worker?

The traditional perception of a judicial appointment is that it brings with it generous terms of employment as well as very valuable pension arrangements on retirement. While that might have been the case for many years, it is most certainly not the current position and senior judges have expressed concern about the impact on morale…

Taking recruitment a step too far!

Recruitment firm ‘Matching Models’ has recently come under fire for posting a job advertisement requesting that applicants are ‘attractive women’ only and have even specified what bra size the successful applicant should be. The advertisement in question specified that applicants for a PA position should have “a classic look, brown long hair with b-c cup”. It went…

It’s not enough to have fair procedures: they must be applied fairly

In Buchanan v Commissioner of Police of the Metropolis the Employment Appeal Tribunal considered the case of a serving police officer who was disabled as the result of a serious motor bike accident while on duty (the bike’s brakes failed). The accident happened in late 2012 when he was responding to an emergency call. Following the accident he…

What are the likely implications of Brexit on UK Employment Law/HR practices?

Employers may not be aware that much of the current legislation in place to protect employee rights actually derives from the European Union – for example, working time regulations, rights of the employees on a business transfer (TUPE) and family leave rights to name but a few. Indeed some Politicians for the ‘Leave Campaign’ will no…