An employee is rejected for promotion on the basis of a concern that she has a health condition – although she is OK at the present time, the condition is likely at some point to worsen and render her unfit for duties. Has the employer acted unlawfully?

This was a situation considered recently in the recent Court of Appeal case of Coffey v Chief Constable of Norfolk. Ms Coffey was a Police Constable and applied for an internal transfer. She attended a health assessment. The assessment concluded that Ms Coffey’s hearing was “just outside the standards for recruitment strictly speaking”.

The medical adviser did note that Ms Coffey had carried out a policing role without any undue problems but recommended that Ms Coffey complete an “at work” test to assess her ability to work in an operational environment. However this recommendation was not followed and the application to transfer was declined due to a concern that it would increase pressure on front line resources to have a retained officer who may in the future become permanently restricted and no longer operationally deployable. It was presumed that Ms Coffey’s hearing would deteriorate further in the future so she wouldn’t be able to carry out the full range of front-line duties and would need to be put on restricted duties.

Ms Coffey made a claim of disability discrimination to an Employment Tribunal who upheld her claim, deciding that she had been treated less favourably because of an actual or potential disability which her employer feared could result in them having to make adjustments to the role in the future. It awarded her compensation in the sum of £26,616.

Her employer appealed on the basis that although the relevant law (the Equality Act 2010) covers discrimination on the basis of a “perception”, this was not such a case as it did not believe that she was disabled at the time so it cannot have discriminated against her on this basis.

However the Court of Appeal pointed out that the Equality Act covers “progressive conditions” so a condition which does not satisfy all elements of the definition of disability now, but is likely to in the future due to the nature of the condition, is deemed to be a disability and the employer had this squarely in mind when making its decision to reject Ms Coffey. This was “direct discrimination” because the employer had made stereotypical assumptions of what the effect of the disability might be and had not obtained any medical evidence.

Learning points for employers:

Whilst it may be rare that an employer has to consider the possible future effect of health conditions at the stage of recruitment or promotion, it is not unknown, and is perhaps becoming more likely as employers are grappling with an aging workforce.

It can be lawful to consider anticipated future health related problems when looking at recruitment and promotion decisions. However these conversations will no doubt have to be handled very sensitively. In this case the employer fell into the trap of forming stereotypical assumptions about the effect of the condition. If these types of decision are to me made, medical advice should be obtained. Such advice should be taken from a qualified Occupational Health doctor or other suitable health professional and they should be fully briefed on the exact future job requirements that need to be satisfied.

In this case, direct discrimination was found, due to the stereotypical assumptions made by the employer.  Had the employer obtained medical evidence and properly considered the likely future effects of the conditions against its requirements it may have been able to argue that its decision was justified.