Employers should take extra care when considering rejecting a job applicant because of a concern that a health condition is likely to deteriorate (even if that view is wrong). The statutory definition of disability includes progressive conditions which have an effect on ability to carry out normal day-to-day activities but this effect is not yet – but is likely to become – a substantial adverse effect. An employer’s concern based on an incorrect belief that the condition is likely to deteriorate may amount to a perception that the candidate has such a progressive condition; this will be a perception of disability as defined by statute and therefore an unlawful ground for refusing the candidate. It is not necessary to show that the employer knew the legal definition of disability and considered it satisfied, only that it thought the individual had an impairment with the features necessary to satisfy the definition.
In The Chief Constable of Norfolk v Coffey, it was held that the employer rejected a candidate’s application for transfer to another police force because of its (incorrect) view that her hearing condition was likely to deteriorate in the future to the point where she would have to be placed on restrictive duties. The EAT upheld a ruling that this amounted to unlawful direct discrimination on the grounds of perceived disability, as an individual whose condition was not perceived to be likely to deteriorate would have been treated differently. Leave to appeal has been sought.
In the meantime, employers should be wary: the potential for claims is broad given the scope for inaccurate assumptions about the effects and likely duration of a condition and the likelihood of deterioration. The issue could arise in relation to both physical and mental impairments: employers could easily get caught out by making and taking into account wrong assumptions about the severity, duration or likely deterioration of an individual’s stress or anxiety, for example, and thereby extend discrimination protection to an individual who in fact does not currently have a condition satisfying the definition of disability. It will be important for an employer to critically assess the rationale for its actions and ensure factors that meet the definition of disability are not at play.