Discrimination by perception and association – what employers need to know
These lesser-known forms of discrimination may catch employers out.
By now, employers are likely to be well versed in the protections their employees have against discrimination, yet employers may still be caught out by the forms of direct discrimination which can arise even though the individual does not in fact have a particular protected characteristic - discrimination by perception or association.
Discrimination because of ‘a’ protected characteristic
Perhaps one of the reasons perceptive and associative discrimination goes under the radar is that, unlike the other forms of discrimination, it isn’t spelled out in the Equality Act 2010. Instead, the protection is only hinted at by the way direct discrimination is defined as being because of ‘a’ protected characteristic, rather than because of ‘his/her/their’ protected characteristic.
Before the Equality Act 2010, a range of legislation was in place to protect people with different protected characteristics. In some cases, the legislation required the person subjected to discrimination themselves to have the protected characteristic being discriminated against. For example, the Sex Discrimination Act described discrimination in terms of being ‘on the grounds of her sex’ [emphasis added]. Whereas in other discrimination legislation, protections were worded more broadly.
However, with the decision of the European Court of Justice in Coleman v Attridge Law and another [2008] the ECJ confirmed it is not necessary for an employee to be disabled to bring a direct discrimination claim against their employer. Protection under the EU’s Equal Treatment Framework Directive (2000), which underpinned the discrimination protection legislation in the UK at the time, could be based on a third party’s disability. When the then Labour government moved ahead with plans to simplify the UK’s disparate discrimination legislation into the Equality Act 2010, this decision was captured in the Act by defining direct discrimination at section 13 of the Act as being where someone discriminates against another ‘because of a protected characteristic’ [emphasis added].
What is perceptive discrimination?
Put simply, this is where a person (A) has a perception that another person (B) has a protected characteristic and A discriminates against B because of that perception.
It doesn’t matter if A is in fact wrong about B having a protected characteristic. For example, A might discriminate against B because they believe they are homosexual or belong to a recognised ethnic or racial group, such as being Jewish, Sikh or Romani gypsy. Even if B does not, in fact, belong to those groups, they may have a direct discrimination claim.
Perceptive discrimination does have some difficult grey areas. For example, is it perceptive direct discrimination if A discriminates against B for a perception that B has a health condition where that health condition is not a disability?
Some clarity was provided in the decision in Chief Constable of Norfolk v Coffey [2019] where the Court of Appeal found that an employment tribunal was correct when it concluded that Mrs Coffey’s application to transfer to the Norfolk Constabulary was refused because of a perception that Mrs Coffey was disabled, despite Mrs Coffey’s contention that her condition did not meet the definition of disability under the Act. This case rested on the fact that Norfolk Constabulary perceived that Mrs Coffey’s hearing loss would in future deteriorate and have a long term substantial adverse impact on her ability to carry out day to day activities (thus meeting the definition of a disability), even though it did not consider her to have a disability under the Equality Act. For more detail on this case, see our 2019 article ‘Stereotypical assumptions about a health condition could be disability discrimination – even if the employee is not disabled’.
Cases like Coffey show that employers need to be alert to making ill-informed assumptions about the impact of certain conditions on their staff. For example, as more and more evidence continues to emerge of the neurodiversity of the population, it is important that employers do not make detrimental decisions about staff based on stereotypical views of what neurodiverse people can or cannot achieve.
Whether or not a member of staff has a condition qualifying as a disability under the Equality Act, there is a risk of claims where decisions, such as not to recruit, not to promote, or to deny training opportunities, are because of a perception that the condition impacts, or will impact, on their ability to carry out certain activities.
What is discrimination by association?
Discrimination by association occurs where A discriminates against B because of a protected characteristic of a third party with whom B is associated. As noted above, the key recent case for associative discrimination in an employment context is Attridge Law v Coleman [2010] where the Employment Appeal Tribunal, following the decision of the ECJ, upheld a tribunal’s decision that Mrs Coleman was discriminated against because of her son’s disability. In that case, Mrs Coleman claimed unfair dismissal against Attridge Law following allegations from her employer that she was using her son’s disability to manipulate requests for specific working hours.
A tricky grey area in associative discrimination is precisely how closely the connection between the person suffering the less favourable treatment and the third party with the protected characteristic needs to be for the protection to take effect. In Coleman the ECJ Advocate General’s opinion was that the purpose of the EU Framework Directive underpinning the relevant discrimination law in the UK was to combat all forms of discrimination, including those third parties ‘closely associated’ with the protected group, even where that third party is not themselves a member of the group.
Unfortunately, the Supreme Court decided not to opine on this point when it delivered its decision on the case of Lee v Ashers Baking Co Ltd [2018] (the widely publicised ‘support gay marriage’ cake case) which contained elements of associative discrimination.
Whilst we know from Coleman that a relationship between a parent and child is close enough to meet the required threshold for close association, it remains unclear whether more distant relationships between the victim of discrimination and the third party could found an associative discrimination claim.
The Employment Appeal Tribunal in Gan Menachem Hendon Ltd v De Groen [2018] confirmed that associative discrimination claims cannot be based on the discriminator’s own protected characteristic where the claimant does not have that characteristic. In this case, De Groen, a nursery teacher at an ultra-orthodox Jewish nursery, was found not to be able to claim she had suffered direct religion or belief discrimination when she was dismissed for cohabiting with a partner to whom she was not married and failing to lie about it when asked to by her employer.
Can you have indirect associative discrimination?
A line of case law has developed outlining protection against indirect associative discrimination, despite section 19 Equality Act 2010 clearly requiring the person suffering the detriment to have the protected characteristic. This follows the decision in CHEZ Razpredelenie Bulgaria AD v Komisia za zashtita ot diskriminatsia [2014] where the ECJ held that a claimant can establish indirect discrimination claims if they do not themselves have the protected characteristic.
In effect, the decision in CHEZ demonstrated that the wording of s.19 Equality Act 2010 did not give effect to the definitions of indirect discrimination present in the Equal Treatment Directive 2006 and the Equal Treatment Framework Directive 2000, and since then UK courts and tribunals have been under a duty to give effect to the protection against indirect associate discrimination where it arises in indirect discrimination cases.
This background led to the decision in Follows v Nationwide Building Society [2018] where an employment tribunal found that Mrs Follows suffered less favourable treatment via her association with her disabled mother, who she cared for at home, when her employer failed to discuss alternatives to their requirement for her to spend more time in an office as part of a broader redundancy and reorganisation exercise.
Though employment tribunal decisions are not binding on other tribunals, the decision in this case suggests that indirect associative discrimination claims are possible and that cases concerning employees with care duties to close family members are one group who may call on the protection.
Comment
The risks of perceptive and associative discrimination should be kept in mind by employers when they are aware that a protected characteristic is, or might be, a factor in the relationship between them and their employee.
However, this area of law remains complex with considerable grey areas remaining in precisely how far the protections extend and in what circumstances they apply. For these reasons, employers would be well advised to seek specialist employment law advice before making decisions detrimental to an employee where the employer is understands either the employee or a third party associated with them possesses a protected characteristic.
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How Wrigleys can help The employment team at Wrigleys is expert in advising charities, third sector and education sector clients on protections under the Equality Act 2010. We have extensive experience in helping employers with recruitment, grievances, disciplinaries, changing terms of employment, and redundancies, including where discrimination issues arise. We offer timely, pragmatic advice to reduce the risk of conflict and claims. Importantly, we work within the wider charities, social economy, and education teams at Wrigleys and so we also have in-depth understanding of how our clients’ governance and regulatory obligations impact on employment litigation risks. Our CSE team can further help to minimise your risks by providing advice on charity law, trustee and director duties and delegation of powers, reporting to the regulator, and reputational risk. |
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