Perceived disability - before October 2010

Direct discrimination or harassment based on 'perceived' disability might well be illegal under the Framework Employment Directive. This may also be the position under UK law before October 2010 as regards employment. From October 2010, discrimination by perception is intended to be more clearly covered by the Equality Act 2010.

What is perceived disability?

Perceived disability is where the person does not actually have the disability but the discrimininator mistakenly thinks they do.

'Perceived' disability is not itself a legal term. The idea is that discrimination can be 'on grounds of disability' even if the 'victim' does not actually have a disability, but the discriminator thinks he does. In the same way, harassment can be 'related to disability' even if the victim is not actually disabled.

How could this be relevant to stammering?

Effect of stammering

Perceived disability may be relevant if a stammer does not actually have a substantial (i.e. more than minor or trivial) effect on normal day-to-day activities, so as not to meet the legal definition of disability.

It may well be that the employer perceived that the stammer would such an effect - many work activities would count as "normal day-to-day activities". Indeed would the employer have discriminated otherwise? The employer's perception may be enough to bring the case within the DDA, provided the claim is

for direct discrimination or harassment, and
in an employment/work context.

What is likely in practice is that the person who stammers will be arguing that the stammer meets the legal definition of disability, but also saying (by way of backup argument) that in any event the claim falls within the legislation even if the stammer does not meet the definition.

Perceived 'mental' disability

As a person who stammers, it is not unusual to find people thinking that because of one's speech one has slower mental processes, or that one will have difficulty understanding what the other person says unless they speak r-e-a-l-l-y s-l-o-w-l-y.

Accordingly, if an employer disputes that the stammer itself is a disability, there may in any event be direct discrimination or harassment related to a perceived mental disability.

What is the basis of the argument?

It is very possible that under the European Framework Employment Directive direct discrimination and harassment based on perceived disability are illegal. The Coleman case focussed on discrimination based on association, but it can be strongly argued that the same wording of the Directive also covers perceived disability. This is on the basis that the discrimination or harassment is "on grounds of" or "related to" disability even if claimant does not actually have a disability. Very similar wording in the UK's Equality Act 2010 (below) which came into effect in October 2010 is intended to include perceived discrimination - but that wording is already in the European Directive.

What about UK law for discrimination etc which happened before October 2010? If the Directive does cover perceived disability, it could be argued that - as held in the Coleman case (Re-interpreting the DDA to cover discrimination by association) - pre-October 2010 UK law must be interpreted consistently with the Directive to include direct discrimination and harassment based on perceived disability. Alternatively, the Directive would have 'direct effect' in the case of a public sector employer, and even for a private sector employer may have effect under the Kücükdeveci case.

The argument for perceived disability being protected is unlikely to apply to other types of discrimination, such as the reasonable adjustment duty. This is because the Employment Directive wording there is different.

The pre-October 2010 legal position on perceived disability will presumably not be established unless it is pursued far enough in a case such as DLA Piper (below), and probably taken to the European Court.

Cases before the UK tribunals

Aitken v Commissioner of Police of The Metropolis (June 2010) is one Employment Appeal Tribunal (EAT) decision on whether perceived disability is covered by the DDA - the EAT said no it isn't. However, the EAT's decision is rather limited in my view. It basically says that the Coleman case was not about perceived disability, but the EAT decision does not consider arguments as to whether perceived discrimination is covered by the Framework Employment Directive (as to which comments in the Coleman judgment would be relevant), and whether a reference to the European Court should be made on that point. In any event, presumably no reference to Europe would have been made as the tribunals accepted that in this particular case there was no discrimination on grounds of perceived disability.

Perceived discrimination has also been argued by the claimant in J v DLA Piper (June 2010), a decision relating to depression, almost simultaneous with the Aitken case above. The claimant argued before the EAT that even if she did not have a disability within the normal DDA rules, she was perceived by the employer as being disabled because of her history of depression. She argued that this was covered by the Directive, and that the DDA must be interpreted to reflect that.

Her appeal to the EAT succeeded on a different point, under normal UK law. The EAT said that the issue of whether discrimination on grounds of perceived disability is covered by the Framework Employment Directive would require a reference to the European Court. The EAT refused to make such a reference at present, given that the point had not been raised in the lower tribunal and that further fact-finding would be required.

One issue raised by the EAT in the DLA Piper case is the problem of deciding whether the employer perceives the employee to have a disability which meets the DDA definition of disability. The EAT commented that the manager may simply not think whether the perceived impairment is likely to last more or less than twelve months, so as to meet the DDA requirement of being 'long-term'.

United States comparison

Apparently the United States already has a 'perceived disability' concept in the Americans with Disabilities Act. For example: "Therefore, if your stuttering does not actually substantially limit your ability to speak, you still may be protected, if your employer discriminates against you because he or she believes your stuttering is a physical or mental impairment" (ADA article on stutteringtreatment.org blog). Also further US links.

Top

Perceived disability - before October 2010

What is perceived disability?

How could this be relevant to stammering?

Effect of stammering

Perceived 'mental' disability

What is the basis of the argument?

Cases before the UK tribunals

United States comparison

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