Perceptive discrimination: Four scenarios for employers to avoid
Author: Stephen Simpson
The way in which the Equality Act 2010 is drafted means that employers can be liable for "perceptive discrimination", which is sometimes referred to as "discrimination by perception". We explain what this means and set out four example scenarios that HR professionals, line managers and employees should avoid because they might lead to perceptive discrimination claims.
Perceptive discrimination: the concept
Under the Equality Act 2010, an individual is protected against discrimination if they possess a protected characteristic.
A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.
The wide wording of s.13(1) of the Equality Act (italics added)
However, the wide drafting of the Equality Act allows a person to bring a discrimination claim even if they do not actually possess the protected characteristic in question. This is because discrimination is unlawful if it is against someone "because of a protected characteristic" (see extract on the right).
The wording of the Equality Act places some limits on the concept of "discrimination by perception". Under the Act, perceptive discrimination claims are limited to instances of direct discrimination and harassment.
In addition, the principle of perceptive discrimination does not cover two protected characteristics: marriage and civil partnership, and pregnancy and maternity. However, most potential claims related to marriage, pregnancy and maternity are likely to come under the sex discrimination provisions of the Equality Act. Similarly, most potential claims related to civil partnerships are likely to be covered by sexual orientation discrimination.
These four example workplace scenarios illustrate how claims of this nature could arise.
Example 1: the heterosexual employee who is believed to be gay
Steve, who is heterosexual, is a sales person who has a new job in a male-dominated sales environment. At the end of his first week, a colleague asks him if he wants to go to the pub after work to watch the Friday night Premier League game. Steve says he cannot go as he has pre-booked theatre tickets to see a musical, and admits that he does not like football anyway.
The colleague's response is that "musicals are so gay" and "what sort of bloke doesn't like football?". In the weeks that follow, the same colleague calls him "darling" and "dear" and makes "limp wrist" hand gestures towards him.
Steve complains to his team leader, who dismisses his colleague's actions as "just banter". Steve resigns after one month at the company because he does not like the working environment.
Which protected characteristics are covered?
- Gender reassignment
- Religion or belief
- Sexual orientation
This employer is open to a claim similar to the one brought in English v Thomas Sanderson Blinds Ltd  IRLR 206 CA.
In English, the Court of Appeal held that a heterosexual employee whose working environment was made intolerable because he was repeatedly subjected to homophobic insults was harassed on the ground of sexual orientation. It did not matter that he is not gay and his harassers did not believe him to be gay.
Although Mr English's harassers knew him to be heterosexual, the same principle would apply in a case in which the harassers have a genuine, but mistaken, belief that a colleague is gay.
Steve could also bring a claim for constructive dismissal, on the basis that the harassment and the employer's failure to take his complaints seriously breached the implied term of "mutual trust and confidence" and entitled him to resign.
Example 2: the condition perceived to be a long-term health issue
Chris, an experienced lorry driver, has poor vision in one eye. He has a clean driving licence and no other medical conditions. To get an up-to-date certificate from the Driver and Vehicle Licensing Agency (DVLA) to drive heavy-goods vehicles, Chris obtains a medical examination form completed by both his doctor and optician.
Chris applies for a role as a lorry driver at a transport company. Despite his seemingly strong credentials and certificate from the DVLA, the manager conducting the recruitment process rejects his application on the basis of concerns about his eyesight. The interview notes query if Chris "will be able to drive in a few years' time" and state that "we don't need the hassle/extra costs when that happens".
Reducing the risk of "perceptive discrimination" claims
An explanation of "discrimination by perception" in your organisation's equal opportunities policy can help to reduce the risk of this type of tribunal claim.
Employers could also highlight "perceptive discrimination" in their training for line managers on bullying and harassment.
Chris's circumstances are similar to those in Chief Constable of Norfolk v Coffey  IRLR 805 CA, which is the leading judgment on "discrimination by perception" in disability claims. The Court of Appeal accepted that a claim of direct perceived disability discrimination can succeed when the claimant is perceived as being disabled, even if their condition does not in fact meet the legal definition of a disability.
The Court of Appeal held that the key issue is whether or not the alleged discriminator perceives that the claimant's health condition has all the features to meet the definition of a "disability" under s.6 of the Equality Act 2010. To meet the statutory definition, the condition must be a physical or mental impairment that has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities.
The Court of Appeal stressed that the alleged discriminator does not have to have thought through whether or not the claimant's condition meets the legal definition of a "disability". It is sufficient that they think that the claimant's condition has the relevant features of the protected characteristic.
Example 3: the "masculine-looking" woman who applies for a job
Sam is a self-confessed "fitness fanatic". She does weightlifting competitions and takes part in extreme sports such as "mountain ultra-marathons". She has short hair and admits to joking with her friends about being "mistaken for a man".
Sam applies for a job in a clothing retailer, and she is pleased with her interview performance. However, she is concerned with a number of comments from her interviewer, who describes her as "butch" and asks her "have you learnt how to put on make-up yet?". Sam's fears are confirmed when her job application is unsuccessful.
"Gender reassignment" is a protected characteristic under the Equality Act 2010. Sam could have a claim for direct discrimination because of perceived "gender reassignment", even though she is not in fact transgender.
Alongside Sam's potential direct discrimination claim, she could also claim harassment. She would have to show that the interviewer's comments were unwanted conduct related to gender reassignment that had the purpose or effect of violating her dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for her.
Example 4: the Asian worker assumed to be a Muslim
Arjun is an IT worker in the UK. He is originally from India, where Hinduism is the predominant religion. He is in fact an atheist.
Following a terrorist attack in the UK, a colleague comments that Arjun "looks like one of those Islamist terrorists" and asks "why does your religion lead to this sort of violence?". His colleague suggests that "we search his bags for bombs every morning when he arrives at work".
Arjun raises a formal grievance about the comments to his line manager, who urges him to ignore them because they were "just a joke" made at a time when everyone is on edge because of the terrorist attacks. His line manager does not involve the HR department.
This is a good example of circumstances that could lead to a claim for "discrimination by perception". Arjun could claim that he was directly discriminated against and harassed on the basis of his colleague's mistaken belief that he practises a particular religion.
Arjun could argue that he has been discriminated against "because of" the protected characteristic of "religion or belief". It would not matter that his alleged harasser's comments were made in the mistaken belief that he is a practising Muslim nor that he is an atheist.