You don't have to have a protected characteristic to be directly discriminated against for it. Two forms of discrimination deal with this: discrimination by association (or associative discrimination); and discrimination by perception (perceptive discrimination).
Discrimination by association
Associative discrimination comes about when someone is treated unfavourably on the basis of another person's protected characteristic.
For example, a candidate who has been told she is getting a job, and then suddenly, she is deselected after revealing she has a severely disabled child with complex care arrangements. The withdrawal of the job offer could amount to discrimination because of her association with a disabled person (disability being a protected characteristic).
Discrimination by association doesn't apply to all protected characteristics. Marriage and civil partnership, and pregnancy and maternity are not covered by the legislation.
Nor does it apply to instances of indirect discrimination by association - it has to be direct. However, legal experts have pointed to developments in the European Court of Justice which suggest that this is an area that could change.
Discrimination by perception
When someone is treated unfavourably because others believe they have a protected characteristic, even though in reality they don't have it, it is perceptive discrimination.
A possible example of this is an employee who is rejected for promotion to a supermarket buying team that sources wines, because he has an Arabic name. The employer has assumed that he is a Muslim and won't want to deal with alcohol.
This could be considered discrimination by perception, whether or not the employee is a Muslim.
As with associative discrimination, perceptive discrimination does not apply to marriage and civil partnership, nor pregnancy and maternity, and it must be direct discrimination.
It is discriminatory to refuse employment because of a perception that a health condition will affect a person’s ability to work in future.
Treating an employee less favourably based on assumptions about their health or any other protected characteristic could prove a costly mistake.
Case Example
Lisa Coffey was a police officer in Wiltshire Constabulary and suffered from a degree of hearing loss and tinnitus which did not affect her ability to do her job and was not considered a disability under the Equality Act.
In 2013 she applied for a transfer to Norfolk Constabulary. She disclosed the hearing loss and the results of a functionality test that showed she was able to perform her existing role. However, the constabulary rejected her application because her hearing fell “just outside the standards for recruitment” as published by the Home Office. The constabulary was concerned that the hearing loss would have a substantial impact on Coffey’s ability to perform day-to-day activities in future, suggesting that she would have a future disability.
In 2016 she claimed for direct disability discrimination to an employment tribunal. The tribunal found that Norfolk Constabulary had not followed Home Office advice to conduct an individual assessment of Coffey’s ability and had not acted on a recommendation from a medical adviser about the need for an at-work test.
She was awarded £26,616.05 in compensation because she had been unlawfully discriminated against on the grounds of “perceived” disability.
Norfolk Constabulary challenged the decision at the Employment Appeal Tribunal which agreed with the previous judgement that the constabulary had been wrong to reject Coffey’s application for a transfer on the basis she would have been unable to perform her role in future.
In June 2019 The Court of Appeal upheld both decisions and said there was no evidence in support of Wiltshire Constabulary.
The Equality Act 2010 sets out a definition of direct discrimination wide enough to encompass discrimination on the basis of a perceived characteristics.
When an employer perceives that a non-disabled person has a disability, it is direct discrimination. Furthermore, if an employer knows that someone has an impairment, and doesn’t believe that it currently amounts to a disability but perceives that the impairment could well have a substantial long-term impact in the future. This too would be considered direct discrimination. This judgement may happen through unconscious bias, which dilutes diversity in the workplace and increases liability to discrimination.
The crucial message employers need to take away from this case is to ensure that staff are fully aware either through formal training, written policies or induction sessions that discriminatory conduct will not be tolerated regardless of whether it is directed at someone with a protected characteristic or not.
Please do not hesitate to contact us if you would like to review your policies or deliver training on equality and diversity.
