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Foretelling the future: when can you take into account future ability in recruitment decisions?

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When an employer is considering whether to hire, promote or is otherwise taking management decisions about employees, it is fairly common to think forward and consider the future performance of the individual in this role.  A recent case demonstrates the risk in doing so where an employer does not take great care on what factors it takes into account when making these decisions.  It is a reminder that, when making assumptions about an employee’s ability to perform a role, it is very important not to cross the line into making discriminatory decisions.

This case is yet another example of disability discrimination issues being litigated.  It gives us useful guidance on the part of the test for disability that looks at “normal day-to-day activities”.

Miss Coffey was a police officer in the Wiltshire Constabulary.  In 2013 she applied for a transfer to the Norfolk Constabulary, but it was refused because on a medical test her hearing fell, as the medical adviser put it, “just outside the standards for recruitment, strictly speaking”.  ACI Hooper of Norfolk Constabulary assumed that the hearing loss prevented her from carrying out the role of a front-line officer.

Miss Coffey raised a claim alleging that she had been discriminated against because of a (perceived) disability.  She suffered from a degree of hearing loss but this had never caused her any problems in doing her job and it was agreed it did not constitute a disability within the meaning of the Equality Act 2010.  She was successful at Tribunal, but her employer appealed first to the EAT and then the Court of Appeal.

The Court of Appeal was asked to determine whether the decision to refuse employment because of a perception of a risk of future inability to work as a front-line officer was disability discrimination.  The Court of Appeal agreed that it was.  This was because:

  • Norfolk Constabulary believed at the time of the decision that the Claimant was suffering from a progressive condition (as evidenced by the fact that the employer thought her hearing would get worse);
  • at the point the decision was made, the impairment had some impact, but the focus must be on what impact the condition may have in the future – what stage the condition has reached at the moment of the act complained of can only be of secondary significance;
  • Norfolk Constabulary believed that the result of the deterioration in the Claimant’s hearing, if it occurred, would be that she would be unable to go on working as a front-line officer. In practice, this is a finding that her hearing loss would have a serious adverse impact on her ability to perform normal day-to-day activities. The effect of this is to trigger protection as Miss Coffey was then to be treated as already having an impairment with a substantial adverse effect on her ability to carry out normal day-to-day activities.

One of the key arguments before the Court of Appeal was whether the particular activities required of a front-line police officer are “normal day-to-day activities”.  Or were they actually highly specialised capabilities such that her potential inability to perform them should not form part of the assessment of perceived disability.  The Court of Appeal held that the work of a front-line police officer is in many respects unique and that it is often challenging and sometimes dangerous.  But the multifarious activities that it involves – or at least those for which good hearing is relevant – are nevertheless for the purpose of the Equality Act “normal day-to-day activities”. Norfolk Constabulary’s belief, as found by the ET, that the Claimant’s hearing loss would, currently or in the future, render her unable to perform the duties of a front-line police officer was a perception that it would have an effect on her ability to carry out normal day-to-day activities. Any such effect would be substantial and adverse where it would lead to her being taken off front-line duties, which meant the test of disability was met.