The Court of Appeal has confirmed that direct discrimination on grounds of perceived disability is unlawful. As the statutory definition of disability can include progressive conditions, perceived disability can include where an employee has a condition which currently does not cause a substantial adverse effect on normal day-to-day activities but the employer mistakenly perceives that it is likely to worsen so as to have that effect in the future. It is not necessary that the employer perceives the employee expressly to satisfy the statutory definition of disability, only that it perceives the employee to have an impairment with the features specified in the statutory definition.
Where an employer rejected a job applicant based on stereotypical assumptions that the individual’s condition (in this case, hearing loss) would worsen sufficiently to give rise to a substantial adverse effect in the future, that constituted direct disability discrimination on grounds of perceived disability. Direct disability discrimination cannot be justified. This can be contrasted with the situation where the reason for the treatment is that an employee is or is perceived to be unable to do the work required satisfactorily as a result of disability, where the claim is for discrimination arising from disability and the employer can seek to justify the treatment.
Given the breadth of potential disabilities, managers should be live to the potential for perceived disability claims when making decisions based on their view of an individual’s capabilities. Decisions should be based on medical evidence rather than assumptions about the individual’s condition. (Chief Constable of Norfolk v Coffey)