REWARD INSIGHT
Disability, rest breaks, pre-termination agreement
Nicola Mullineux, senior employment specialist for Peninsula, reviews the decision in three cases
The Chief Constable of Norfolk v Coffey Employees receive protection against discrimination when their employer treats them less favourably because they perceive they have a disability, even if they do not. The Employment Appeal Tribunal (EAT) has considered whether a refusal to recruit because a health condition may cause the candidate to become restricted in the future was perceived disability discrimination. The employee was initially employed as a police constable from 1993–97. In 2009, she joined the Wiltshire Constabulary as a staff member and later applied to become a police constable in 2011. A medical assessment was carried out which found the employee suffered from hearing loss with tinnitus. As per the medical standards, contained in the national recruitment standards, this was below the standard for hearing loss. The guidance, however, stated this standard was non-decisive and where hearing loss was borderline, or only in one ear, a practical test should be considered. The Wiltshire Constabulary followed this guidance and carried out a practical test. The employee passed the test and carried out front-line duty without any adverse effect from 2011. In 2013, the employee completed a transfer application to the Norfolk Constabulary which disclosed she
had hearing loss but did not need any adjustments. The employee was informed she had been successful at interview but the transfer was subject to a fitness and health assessment. An assessment in December 2013 identified she had significant hearing loss which was below standard; however, it went on to recommend a practical test due to her current operational role. The Constabulary sought further advice from a medical adviser who also concluded the employee’s hearing loss was below standard and advised a practical test to be carried out. ...it would have a substantial adverse effect on the employee’s
disability under section 13 of the Equality Act 2010. When giving evidence at tribunal, the ACI’s witness statement explained she saw the employee as a ‘non-disabled permanently restricted officer’ and, due to the ongoing employment of permanently restricted officers, the risk of restraints on the force would be knowingly increased by recruiting an applicant who did not meet the medical standards. On the basis of this evidence, the tribunal determined the ACI perceived the employee had a condition which would lead to the force having to make future adjustments to the role; becoming a future liability. As the only reason for rejection of the transfer was because the employee did not meet the medical standards, there was direct discrimination on the grounds of a perceived future disability. On appeal, the EAT agreed that the Equality Act 2010 covers situations where an individual is treated less favourably because it is perceived they have an impairment which will become a disability in the future. In this case, the reason for rejecting the transfer application was because the ACI believed the hearing condition could progress to a stage where it would have a substantial adverse effect on the employee’s day-to-day activities and she would have to be placed on restricted duties. Therefore, the
day-to-day activities...
The Acting Chief Inspector (ACI) declined the transfer application because she did not meet the required hearing standard and, if transferred, the risk of the employee’s ability to perform the role would become the responsibility of the Norfolk Constabulary. The employee made a claim for disability discrimination on the grounds of a perceived
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| Professional in Payroll, Pensions and Reward | March 2018 | Issue 38
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