I was reading a very interesting article by Darren Newman in Employers’ Law magazine on why, although the Equality Act 2010 is widely proclaimed as prohibiting discrimination by perception, the question of what exactly the employer must perceive for someone to bring a successful discrimination claim is yet unanswered. I thought I would share some of it with you as you may find it interesting…….
‘Direct discrimination is less favourable treatment “because of a protected characteristic.” The key point is that “a” protected characteristic does not have to be the claimant’s characteristic. So, if an employer discriminates against an employee on discovering that the employee’s wife is a Catholic, that would amount to discrimination because of the protected characteristic of religion. This is what we mean as discrimination by association.
‘Similarly, if it turned out that the employer discriminated because it mistakenly thought that the employee was a Catholic, that would also be less favourable treatment because of the protected characteristic of religion. This time we could label it discrimination based on perception. In both cases however, the claim is simply one of direct discrimination.
‘Prior to the introduction of the Equality Act 2010, it was perfectly possible to bring a claim for race, sexual orientation or religion or belief discrimination where the discriminator was acting either on the basis of someone else’s characteristics or on the basis of perception. However the age discrimination, sex discrimination and disability discrimination legislation was phrased differently and required the discrimination to be on the grounds of the claimant’s age, sex or disability………In the realm of disability in particular, discrimination based on perception raises some serious difficulties. On one level, discrimination based on perception seems straightforward. If an employee tells his employer that he has HIV and is dismissed, that will still be discrimination even if it turns out that the employee was misdiagnosed. HIV is deemed to be a disability and the employer has dismissed the employee because of the protected characteristic of disability even if it transpires that the employee does not have HIV.
‘That scenario is straightforward because there can be no argument about HIV being a disability. But what about where the existence of a disability is less clear cut? Must the employer have in mind the definition of disability set out in s.6 of the Equality Act 2010? If it avoids employing a job applicant who walks with a limp, will that amount to discrimination only if the employer believes that the limp will last for a year or more and have a substantial adverse effect on his or her ability to carry out day-to-day activities? In most cases where discrimination based on perception could arise, it is unlikely that the employer’s reasoning will be so sophisticated.
‘Perhaps it will be enough for the employer to be acting on a general impression of disability and there will be no need to show that it addressed its mind to the legal definition. The fact is that the Equality Act 2010 does not clearly explain what sort of perception is needed. There is a limit to how much the single word “a” can convey.’
This article certainly raises some interesting issues, particularly for employers as things aren’t always so clear when it comes to the Equality Act, despite the fact that it aims to make things simpler when it comes to establishing what is or isn’t discrimination.
