Jason Braier provides a summary from The Chief Constable of Norfolk v Coffey judgment.
The CA's judgment in Ch Const of Norfolk v Coffey is mainly about perceived disability discrimination, but in doing so, it covers whether hearing a fly's footsteps is a normal day-to-day activity & my favourite word used in a witness statement.
1st, the facts. Ms Coffey was a frontline officer in Wiltshire, with imperfect hearing levels though not bad enough to satisfy the s.6 definition. She applied for transfer to Norfolk.
Under Home Office guidance, someone with C's hearing levels could be recruited, though it might be worth putting them through practical tests first. In any event, the guidance made clear the decision was to be made on an individual basis.
The Chief Constable ignored 2 lots of medical advice saying C was fine to perform the frontline role & rejected her application on the express basis that the results of her hearing tests fell below the guideline levels.
A claim was brought and (after a normal s.13 & s.15 claim were dropped) was decided by the ET in C's favour on the grounds of direct perceived disability discrimination. Seemingly (albeit not entirely clearly set out) this was due to perception of a progressive condition.
The EAT rejected the police's appeal and the matter progressed to the CA. As one can expect from an Underhill judgment, not only is there a whole host of points of interest, but also a need to delve into the footnotes.
Firstly, Underhill took the opportunity to give the CA seal of approval to some non-contentious points. 'Likely to result' in the definition of progressive conditions is confirmed to mean 'could well happen to result'. Mowat-Brown is confirmed as no longer being good law.
Secondly, that perception discrimination is included within s.13.
Thirdly, that for perception discrimination to be made out, what must be perceived are all the features of the protected characteristic set out under the EqA (so here s.6). The discriminator's actual knowledge of the legal definition of disability is irrelevant.
Underhill then moved on to the meaning of 'normal day-to-day activities' it being the police's case that frontline activities are 'unique' & hence fall outside the definition. Underhill endorsed (if it needs endorsement) the CJEU definition in Ring & Chacon Navas and hence approved Richardson in the EAT that normal day-to-day activities encompass activities relevant in working life. Assessing each individual aspect of frontline policing, there was nothing akin to the watchmaker or the concert pianist identified in the SoS guidance.
As an interesting sidenote, the correctness of the watchmaker & pianist section of the Guidance had been previously criticised by HHJ Richardson in Banaszczyk in light of Ring and Chacon Navas, but that wasn't explored by Underhill in Coffey.
More to the point, focus here needed to be on whether the hearing aspects of frontline policing fell outside normal day to day activities. It is here Underhill speculates on listening to the footsteps of flies (they'd doubtless be arch criminals if only they just walked)!
Underhill then considered the elements of progressive condition and satisfied himself that the chief constable had a belief that each element was made out. The most interesting part was the need to find 'some' but not a 'substantial' adverse effect.
The court then moved on to that now well-trodden line between s.13 an s.15 - using the Malcolm v Lewisham guide-dog in a cafe example, and also confirming the Aylott stereotyping class of s.13 claim & that Coffey fell within it.
And finally, hidden away in FN8, Underhill postulated that it is unlikely that there can be perceived discrimination under s.15, although it was not in issue and didn't need to be determined in this case.
Oh, and yes, that favourite witness statement word - the chief constable considered that front line police have to be 'omnicompetent'. I'm going to presume that to be the polar opposite of being 'omnishambolic', which is a requirement of another public service.
Jason Braier is a member of the Employment team.
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