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.

Focus on appearance makes employers unattractive

A jazz bar in London recently came under fire for posting a job advert looking for an “extremely attractive” employee. Predictably (and quite rightly), the internet reacted in protest against the wording of the advert.

Was the advert poorly phrased? Absolutely. Is the act of valuing the looks of an employee above skill morally acceptable? Not really. Was the advert illegal? Not directly, no.

Now, “not directly, no” is a bit of a non-answer. And that’s because a person’s looks and/or attractiveness is not protected under discrimination law in itself. By this, I mean that whilst you can be held to illegally discriminate against job candidates by refusing them the role due to a protected characteristic (the 9 characteristics listed later in this sentence), you wouldn’t illegally discriminate solely on the basis of judging by their looks unless your judgment on a job candidate’s looks was related to their race, gender, nationality, religion or belief, disability, pregnancy, sexual orientation, age or gender reassignment (which would then be discriminatory).

Myself? I can see a fairly easy age discrimination argument for any job candidate for that role who is refused the role, as it could foreseeably be argued that the employer has a stereotypical, ageist lean towards younger staff if they are judging on ‘attractiveness’.

But let’s step back from the legal side for a moment and look at the moral perspective. What we are looking at here is ‘lookism’ – i.e. the perception that a person’s looks mean they can’t perform the job (or perform it as well as others). The issue for employers should be the impression they give out by acting in this way – what they are basically saying is ‘we judge more on style than substance’ when, in reality, they should be saying the opposite. Put simply, it risks a PR disaster, particularly if their behaviour goes viral online.

Let’s look at an example linked to two job roles: one for an actress and one for a receptionist.