This is where the person discriminated against does not actually have a disability as defined in the Equality Act 2010 (EqA). Rather the employer etc mistakenly perceives there to be a disability. Direct discrimination and harassment in relation to ‘perceived disability’ are covered by the EqA.
Summary
- Perceived disability is where the claimant does not actually have a disability meeting the EqA definition, but the discriminator perceives the person as having a disability. Below Introduction to perceived disability.
- A claim based on perceived disability is probably only possible for direct discrimination or harassment, not for other claims such as reasonable adjustments. Below Limited to ‘direct discrimination’ and harassment.
- Also a person claiming indirect discrimination need not themself have a disability, but that is on a different basis from perceived discrimination: “Same disadvantage” indirect discrimination (s.19A).
- According to current case law (Chief Constable of Norfolk v Coffey) the employer etc must perceive the claimant to have the features set out in the legal definition of disability – broadly an impairment with a more than minor or trivial long-term effect on ability to carry out normal day-to-day activities, as interpreted by case law, and subject to all the ways in which the EqA modifies the basic definition. See below What perception of disability is required? The employer etc need not know the legal definition of disability, or attach the label of ‘disability’ to the impairment.
- A claimant’s main argument will normally be that they have a disability within the EqA definition (a stammer should usually be an disability within this), with ‘perceived disability’ being a backup argument in case that fails. Below First argument is likely to be that the stammer is actually a disability.
- For direct discrimination, current indications are that it is for claimant to show that (more likely than not) the employer etc perceived the stammer or other impairment to be a disability (M v Jacksons Dairies, below).
- IF this is shown, perceived disability discrimination can be particularly useful where an employer has acted on the basis of a stereotypical assumption. This assumption may both give rise to direct discrimination, and be a perception of disability: example below.
- More generally, below Applying ‘perceived disability’ to stammering.
- For harassment there may be a claim even if there is no ‘perceived’ disability. In other words, the employer etc need not perceive there to be an impairment meeting the legal conditions of being a disability. See below Where there is no disability, actual or perceived.
Introduction to perceived disability
Perceived disability is where the claimant does not actually have a disability within the EqA definition, but the discrimininator sees them as having a disability.
For example, the tribunal may decide that a person’s impairment does not have a substantial effect on normal day-to-day activities, so it is not a disability as defined in the EqA. Nevertheless, the person can claim direct discrimination (below Limited to ‘direct discrimination’ and harassment) if an employer or service provider etc treats them less favourably because it perceives them to have a disability within the EqA definition, ie broadly perceives them to have an impairment with a long-term substantial effect on normal day-to-day activities. There are stammering examples below: Tribunal decision, and other scenarios on stammering.
Harrassment related to a perceived disability is also within the EqA (below Limited to ‘direct discrimination’ and harassment).
When the EqA was passed in 2010, the government did intend it to include discrimination because of a ‘perceived’ protected characteristic, including disability. An appeal decision in Coffey (below), 2017, confirmed that the EqA does have this effect.
Limited to direct discrimination and harassment
Note: Indirect discrimination is another type of claim for which the claimant need not necessarily have a disability. However, this is not based on ‘perceived’ disability: “Same disadvantage” indirect discrimination (s.19A).
A claim for direct discrimination or harassment can be based on a perceived disability.
A claim for harrassment may go further, in that it may not be necessary for the harasser to perceive the person has a disability: see below Where there is no disability, actual or perceived.
A claim for reasonable adjustments, or ‘discrimination arising from disability’ under s.15 EqA, probably cannot be based on a perceived disability. These claims have different wording in the EqA, which is likely to mean that the claimant must actually have a disability as defined in the EqA. The Employment Appeal Tribunal in Coffey – and perhaps the Court of Appeal as regards s.15 – left open whether perceived discrimination can apply in these types of claim, since the point had not been argued. However:
- The Court of Appeal decision in Hainsworth v Ministry of Defence (on discrimination by association) supports the argument that perceived discrimination does not apply to reasonable adjustments.
- Any argument that perceived disability applies to discrimination arising from disability is difficult because of the lack of support for it in the wording of s.15 EqA. The Court of Appeal in Chief Constable of Norfolk v Coffey, at Note 8, commented that the natural meaning of s.15 is that the person should in fact be disabled, not just perceived to be. (Also, even before Brexit, s.15 was not to be found in EU law. So it would have been difficult to argue that EU law required a wider interpretation of s.15.)
If one is claiming for direct discrimination or harassment, it may be worth also basing the claim on ‘perceived’ disability, as an alternative, in addition to arguing that one actually has a disability as legally defined. See also below First argument is likely to be that the stammer is actually a disability.
Perceived disability discrimination is unlawful
It is now accepted by case law that direct discrimination because of perceived disability is unlawful under the EqA. There is little doubt that harassment related to perceived disability is also unlawful.
For a long
Chief Constable of Norfolk v Coffey, [2019] EWCA Civ 1061, Court of Appeal
A serving police officer was turned down for a transfer to the Norfolk police force, because she had some hearing loss. This impairment meant that she fell only just short of National Recruitment Standards. Guidance in these circumstanceswas to look at candidates individually and assess their ability to do the job, which was not done here. The Norfolk Constabulary was concerned that her hearing would deteriorate, so that she would not be fully operational and would have to be put on restricted duties – although medical evidence was that her hearing levels were stable. She claimed direct disability discrimination.The Court of Appeal upheld the employment tribunal’s decision that there was direct discrimination because of perceived disability. The employer thought she would become unable to perform the full duties of a front-line police officer in future. This meant the employer perceived her to have a “progressive condition” which could well have substantial effects on normal day-to-day activities in future. The employer
therefore perceived her to have a disability within EqA Sch 1 para 8 (progressive conditions), bearing in mind that it also perceived the impairment to have some limited effect at the moment.The parties agreed – and the Court of Appeal said it also agreed – that for there to be a perceived disability, the discriminator must believe that all the elements in the statutory definition of disability are present.
However it is not necessary that the employer should attach the label ‘disability’ to them. See further below What perception of disability is required?The Court of Appeal also upheld the tribunal’s decision that the other requirements for direct discrimination were met in this case. Normally discrimination because of the claimant’s abilities will not be direct discrimination (though it can be discrimination arising from disability within s.15 EqA, if the employer does not show justification).
However the Court of Appeal held that an employer’s concern about the ability of a disabled claimant to do the job may constitute direct discrimination if it is significantly influenced by a stereotypical assumption about the effects of the disability.
In For Women Scotland Ltd v The Scottish Ministers (bailii.org), [2025] UKSC 16 at [249], the Supreme Court cited Coffey as authority for the Supreme Court’s statment that in a case of perceived discrimination, the correct comparator is someone who is not perceived to have the protected characteristic. The Supreme Court said that in Coffey, the Court of Appeal endorsed the view of the EAT that where a claimant is treated less favourably on the basis of a mistaken perception that she was disabled, the correct hypothetical comparator is a person who was not perceived to be disabled and who had the same abilities as the claimant.
What perception of disability is required?
The court said in Chief Constable of Norfolk v Coffey (above) that the issue is whether the alleged discriminator believed that all the elements in the statutory definition of disability were present. It does not matter whether the alleged discriminator was familiar with the definition of disability.
This seems to mean that the claimant must show, on a balance of probabilities (ie more likely than not), that the discriminator believed the claimant to have:
- a physical or mental impairment with a substantial (ie more than minor and trivial) and long-term adverse effect on the claimant’s ability to carry out normal day-to-day activities, or
- characteristics otherwise falling within the detailed EqA provisions and case law modifying that basic definition of disability – for example a progressive condition as in Coffey itself.
An employer believes that a person’s stammer has a more that minor or trival effect on their speech, including phone calls for example (a ‘normal day-to-day activity’). I suggest the employer probably takes for granted that this will have lasted more than a year, or could well do (below Stammering: showing perceived ‘long-term’ effect).
Therefore it seems that the employer perceives the person to have a disability within the EqA, because it believes that the person has a physical or mental impairment with a substantial (ie more than minor and trivial) and long-term adverse effect on their ability to carry out normal day-to-day activities.
It does not matter if the employer does not know the legal definition of disability. Nor does it matter if (which is very possible) the employer does not realise that it perceived all the elements of the legal definition to be present. The employer may insist that it does not see someone who stammers as ‘disabled’, but that is irrelevant.
Note: In practice though it will be important whether there is sufficient evidence of the employer’s perception. On that, and for further stammering examples, see below Applying ‘perceived disability’ to stammering.
It seems that the perception of disability would need to be by the individual manager who decided on the less favourable treatment, for example who decided not to recruit (Gallop v Newport City Council). This is because, as discussed at that link, one looks at the decision-maker’s mental processes in deciding whether less favourable treatment was ‘because of’ a protected characteristic.
This approach in Coffey – that the features of the legal definition of disability must be perceived to be met – seems consistent with the intention of Ministers when the Equality Bill was going through Parliament: below Must ‘perceived’ disability be substantial and long-term?
All further EqA provisions and case law which modify and interpret the EqA definition of disability must be taken into account. For example:
Progressive conditions
In the Coffey case itself, it was enough that the employer perceived the claimant to have a progressive condition falling within EqA Schedule 1 para 8. Under para 8, a progressive condition which has some (not a substantial) effect on normal day-to-day activities is a disability if those effects could well become substantial in future. The Acting Chief Constable who rejected the claimant in that case perceived that the elements of para 8 were met. She therefore perceived the claimant to have a disability.
It did not matter that the Acting Chief Constable (ie the employer) misunderstood the definition of disability. The Acting Chief Constable thought that the claimant’s mild hearing impairment did not have a substantial effect on normal day-to-day activities, and believed this meant it was not a disability within the EqA, because she did not know of Sch 1 para 8. The Acting Chief Constable may also not have known that the impairment would necessarily be seen as having a substantial effect on normal day-to-day activities if (as she thought would happen) the impairment resulted in the claimant being put on restricted duties – see next heading.
Normal day-to-day activities
In an employment claim, under case law and (from the start of 2024) under Sch 1 EqA, broadly speaking a work activity is seen as a normal day-to-day activity if it is found in a range of different work situations (‘Normal day-to-day activities’>Employment claims>Extended meaning). This would include for example phone calls, and presumably meetings and presentations. It may not include specialist activities such as silversmithing, or playing the piano to concert standard.
This means that for most jobs, an employer’s perception that someone is unable to do the job adequately because of a stammer or other impairment is likely to be (legally) a perception that the impairment has a substantial effect on normal day-to-day activities. This was part of the Court of Appeal’s reasoning in Coffey above: the employer’s belief that the claimant’s hearing impairment could well render her unable to perform the duties of a front-line officer in future was legally a perception that her impairment could well have substantial effects on normal day-to-day activities in future. That was a belief about how the impairment might develop in future, but the same applies to a belief about the effects of an impairment now.
An employer believes that a person who stammers would not be able to do a sales job satisfactorily because of their stammer. This is likely to amount to a perception that the disability has a substantial effect on normal day-to-day activities.
The employer probably takes for granted that this effect either has lasted more than a year, or could well do in future (below Stammering: showing perceived ‘long-term’ effect). There is therefore probably a perceived disability.
Note: In practice though it will be important whether there is sufficient evidence of the employer’s perception. See further below Applying ‘perceived disability’ to stammering.
‘Long-term’ effect
Under EqA Sch 1 para 2(1)(b), if a substantial effect has not yet lasted 12 months (at the time of the discrimination) it should be seen as long-term if it ‘could well’ last 12 months, as at that time: see Stammering starting in adulthood. Therefore it will presumably be perceived as long-term if the employer perceives it could well last 12 months.
See further below Stammering: showing perceived ‘long-term’ effect.
Recurrence
Under EqA Sch 1 para 2(2), if an impairment ceases to have a substantial adverse effect, it is treated as continuing to have that effect if the effect could well recur.
A Minister said during the passage of the Equality Bill that a person with a depressive condition who does not satisfy the EqA definition of a disabled person would be protected if, for example, their employer discriminated against them because it considered mistakenly that the impairment was likely to recur – see below Passage of the Equality Act 2010>Conditions ‘perceived’ to be likely to recur.
This is consistent with the approach in Coffey. The tribunal looks at whether the employer perceived that the person mets the test in para 2(2), even though the employer was not familiar with the legal test.
Applying ‘perceived disability’ to stammering
A claimant arguing perceived disability should be aware that they may be breaking new ground legally, as the law is still developing.
I focus here on direct discrimination, and also leave aside possible wider arguments (below) that the claimant need not show the employer etc believed the elements of the legal definition of disability were met.
Tribunal decision, and other scenarios on stammering
In a case on stammering and perceived disability, an employment tribunal rejected a direct disability discrimination claim, because the claimant failed to show that the employer ‘perceived’ his stammer to be a disability:
M v Jacksons Dairy, Employment Tribunal, 2026
The claimant mentioned his stammer in his CV when applying for a job. He was rejected without an interview. He did not argue that he had a disability within the EqA, but claimed that he was rejected because the employer perceived he had a disability.The employment tribunal rejected his claim for direct disability discrimination, because he had not shown the employer perceived him to be disabled. It was for the claimant to prove that the employer perceived the claimant to have an impairment with the features set out in the EqA definition of disability. Neither of the employer’s managers had spoken to the claimant at any point, and the information in his CV did not obviously suggest someone who was disabled.
The tribunal did not see as relevant a phone conversation between the claimant and a recruitment agent, who had not made the decision to reject. Also, from a recording of this conversation, it did not seem to indicate a disability.
His race discrimination claim did succeed, however. His name suggested that he did not have a white British ethnic background. Further, he had shown enough of a prima facie case to shift the burden of proof to the employer under s.136 EqA: for example, the claimant’s career experience was more relevant to the role than that of the candidate appointed, and the employer had given conflicting evidence about why it rejected him. Therefore it was for the employer to show that he was not rejected because of race. The employer had failed to show this, so his race claim succeeded.
(Another unsuccessful perceived disability claim by the same person, decided later the same year, was M v Joseph Heler).
Note: This is a first instance decision, and so not a binding precedent. Might it perhaps be argued that the reversal of burden of proof can also apply to proving the employer’s perception: below Possible arguments for a wider test?>Reversal of burden of proof?
If the claimant in this case had shown that he actually had a disability within the EqA (this may or may not have been possible), the tribunal might perhaps have found that the burden of proof shifted to the employer under s.136, in the same way as it did for race discrimination, given the prima facie evidence of a discriminatory reason. Then the disability discrimination claim too might have succeeded. Thus the case illustrates a possible disadvantage of a claim for direct discrimination being based on ‘perceived’ disability, if an actual disability can be claimed.
Whether there is sufficient evidence that the employer perceived the claimant as having a disability will of course depend on the particular case. One possible scenario:
Example: A job application form asks whether the applicant has a disability within the EqA and wishes the employer to make any reasonable adjustments for the interview. An applicant replies yes in relation to their stammer, requesting an adjustment. The employer rejects the person without interview.
In this example, there should be a potential claim for victimisation (subjecting a person to a detriment because they asked for a reasonable adjustment), even without needing to show that the employer perceived there to be a disability.
However, what about a possible direct discrimination claim, based on perceived disability? In this example, there should be a stronger argument than in M v Jacksons Dairy, above, that the employer was likely to perceive the applicant as having a disability as defined in the EqA. (Alternatively, the claimant might show they actually had a disability within the EqA.) Assuming the tribunal accepts that the claimant has shown the employer perceived there to be a disability, there would still be the question whether the claimant has shown further facts (such as the person actually appointed being less qualified than them) sufficient to shift the burden of proof to the employer in a claim of direct disability discrimination.
Example: An applicant mentions in a job application for a sales role that they have a stammer. They are rejected without interview. The employer, asked for feedback, refers to the stammer, and says it does not believe the applicant has the excellent communication skills required by the job description.
Note: In practice an employer may be unlikely to say this.
Here, even if the tribunal did not accept the person’s stammer was an EqA disability, the employer may well be liable for direct discrimination on the basis of perceived disability:
- As to evidence that the employer perceived the stammer to be a disability, the employer’s statement indicates that it perceived the stammer to have a substantial effect on the selling activities he would be doing in the job. These should be seen as normal day-to-day activities, as being activities found in a range of different work situations: below Stammering: showing perceived ‘substantial’ effect on normal day-to-day activities. See also below on perception of long-term effect.
- As to this being direct discrimination, there appears to be evidence that the employer assumed that a person who stammers would not have the communication skills required for this role, hence not inviting this applicant for interview. The employer did not look at the individual’s actual abilities. This may well be direct discrimination: see Stereotypes and assumptions.
This example illustrates how evidence of stereotypes/assumptions – IF available – may be very helpful in showing both that the employer perceived the stammer to be disability, and that there was direct disability discrimination.
First argument is likely to be that the stammer is actually a disability
Perceived disability is relevant if the claimant does not show that their stammer actually meets the legal definition of disability, normally because it does not have a substantial (ie more than minor or trivial) effect on normal day-to-day activities.
Very often a claimant should be able to show their stammer actually meets the legal definition of disability, so that ‘perceived disability’ is not required. In any event, in practice a claimant who stammers is normally likely to argue that their stammer actually meets the legal definition of disability, with any argument of discrimination because of a perceived disability being in the alternative, by way of backup argument.
Advantages of being an actual disability, rather than perceived disability, are that the claimant need not show the employer perceived it as being a disability (the claimant in M v Jacksons Dairy above failed on this), and that claims for reasonable adjustments and ‘disability arising from discrimination’ under s.15 EqA are possible (above Limited to ‘direct discrimination’ and harassment).
Stammering: showing perceived ‘substantial’ effect on normal day-to-day activities
I give an example above of there being evidence that an employer assumed that a person with a stammer would not have the communication skills for a sales role. A case where there is such evidence may be relatively rare. However, if there is such evidence, in an employment discrimination claim, almost any work activity is a normal day-to-day activity (except some ‘specialised’ activities): see ‘Normal day-to-day activities’>Employment claims>Extended meaning. Normally a stereotype – and therefore a perception – that someone cannot adequately do a job will, almost be definition, be a perception that their impairment has a substantial (ie more than minor or trivial) effect on normal day-to-day activites.
Another example of a case where it may be possible to show perceived substantial effect is where there is evidence that the stammer was a factor in turning the person down (even though there is no evidence of stereotyping). Again almost any work activity is a normal day-to-day activity, and if the employer did not see the stammer as having such an effect, why would it turn the person down because of it? But in the absence of stereotyping, there would be the question whether it was direct discrimination, rather than a potential s.15 claim which could only be made if an actual disability within the EqA is shown.
Stammering: showing perceived ‘long-term’ effect
In brief, it will hopefullly not be difficult to persuade a tribunal that the employer more likely than not took it for granted that this substantial effect of the stammer will have lasted for more than a year, or could well do in future. It is enough that the employer perceived the effect ‘could well’ last 12 months: see above Long-term effect.
Stammering in an adult is generally long-term. It will normally have started as a young child. Most importantly in showing that the employer is ‘more likely than not’ (the burden of proof) to perceive stammering as long-term, I suggest that the effects of stammering are commonly regarded as long-term, even though there are exceptions (see Stammering starting in adulthood). Of course evidence of this should be brought if possible! – one could approach STAMMA (whose Advocacy Service may also be able to support a stammering claim more broadly). I suggest the common perception is – at the very least – that adult stammering lasts longer than a year, or (if not) could well last longer than a year, which should suffice under the EqA. I think the common perception is in fact that adult stammering lasts much longer.
The tribunal has to decide whether the claimant has shown that the employer more likely than not saw the substantial effect on normal day-to-day activities as long-term. If an employer’s decision-maker insists that they saw the stammer as short-term, or did not consider at all how long it might last, then on cross-examination in the tribunal, a claimant might ask this individual such things as:
- Well did you seriously think the stammering might just disappear tomorrow (if they assert they did not consider time span at all, since clearly that was not their perception);
- Are you seriously suggesting you did not think it ‘could well’ last 12 months (which is enough for it to be ‘long-term’: see above Long-term effect).
Even if an employer’s witness stands by their position, the tribunal may well find it implausible.
I consider this also as regards some other disabilities below: Comment on showing long-term effect generally.
Possible relevance to stammering of 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 or service provider etc disputes that the stammer itself is a disability, then depending on the particular facts, there may in any event be direct discrimination or harassment related to a perceived mental disability.
Possible arguments for a wider test?
Generally this page assumes that the claimant must show, on a balance of probabilities, that the discriminator perceived that all the elements in the statutory definition of disability to be present (above What perception of disability is required?). However might this be developed further in future cases?
Perception that there may be a disability?
It might be possible to argue that it is enough that the employer etc perceived there may be or could well be a disability, and discriminated because of that. Perhaps the employer was concerned that an impairment may have a substantial effect in workplace activities. Turning the claimant down for the job might still be argued to be because of disability, within the wording of the EqA, and therefore potentially direct discrimination.
However the argument would need to be tested in the courts.
Note that even without this wider interpretation, what ‘could well’ happen (the EqA says ‘likely’, but this has been held to mean ‘could well’) is built into the statutory definition of disability in various ways, including with regard to what counts as ‘long-term’ (above Stammering: showing perceived ‘long-term’ effect and below Comment on showing long-term effect generally). Where this is part of the statutory definition of disability, it should be uncontroversial that it is the employer’s perception of what could well happen that matters.
Mix and match?
What if an employer perceived, for example, that the impairment had a substantial effect but not that it was long-term. But the effect of the impairment (even if not substantial) was in fact ‘long-term’ as defined in the EqA. In other words, can actual facts about the disability fill in gaps in the employer’s perception?
Reversal of burden of proof?
Under EqA s.136, where the claimant has shown a prima facie case, it is for the employer etc to prove it did not act unlawfully: Proving discrimination>Shift in burden of proof. This does not apply to the question of whether the claimant had a disability. On that, the burden of proof remains on the claimant.
However, might it perhaps be argued that this reversal of burden of proof can apply to the issue of what perception the employer had, if the claimant shows a prima facie case within s.136. It might be argued, for example, that the employer’s perception of the claimant’s impairment is so inextricably linked with the reason in the employer’s head for any less favourable treatment that it is unrealistic to apply the reversal of burden of proof to one aspect but not the other. In particular, where direct discrimination is based on the employer having stereotyped the claimant, which could be subject to the shift in burden of proof, that stereotype is likely to also be (or to be an important part of) the employer’s perception that the claimant was disabled. I give an example above.
However, an employment tribunal took a different approach in M v Jacksons Dairy, above, a case on stammering. The tribunal rejected a direct disability discrimination claim because the claimant failed to show that the employer perceived him as having a disability.
If the burden of proof on perception can be reversed, there would be the important question of what evidence is sufficient to reverse it. For example, would it be enough to show that the employer etc knew of the stammer, or would something more be needed? If knowledge were enough for a stammer, for what types of other impairment would knowledge be sufficient? – eg it probably wouldn’t be enough for a twisted ankle.
Not needing to prove all elements of the disability definition?
Might it also be possible to argue that the employer need not perceive the impairment’s effects as long-term (or possibly substantial). See for example this 2011 briefing by Cloisters: ‘Perceived discrimination’: the scope of the definition of disability (archive of docplayer.net). However with referral to the EU Court of Justice no longer an option after Brexit, that might require a decision of the UK Supreme Court, to decide whether there should be a laxer approach than was agreed by the Court of Appeal in Coffey. I’m not optimistic.
Harassment even if no ‘perceived’ disability
Note that for harassment, even under current case law, there may be a claim without anyone being ‘perceived’ as meeting the legal conditions of having a disability. See below Where there is no disability, actual or perceived.
Where there is no disability, actual or perceived
There can be a claim for harassment (s.26 EqA) without the person having or being perceived to have a protected characteristic. The harassment just needs to be ‘related’ to a protected characteristic.
English v Thomas Sanderson Blinds (bailii.org), [2008] EWCA Civ 1421, Court of Appeal.
A heterosexual man, who was known by his tormentors to be heterosexual, alleged that he was subjected by four colleagues to repeated name-calling. Everyone knew he was not gay. It was held that even so this could be unlawful harassment. It was common ground that tormenting a person who the tormentor believed was gay, but who was not, would amount to harassment.
Sexual orientation is a protected charateristic. Mr English could claim for harassment even though he was not gay, and was not perceived to be. No doubt based on that case:
A worker is subjected to homophobic banter and name calling, even though his colleagues know he is not gay. Because the form of the abuse relates to sexual orientation, this could amount to harassment related to sexual orientation.
Employment Code, para 7.10
I’m not aware that the courts have been asked to apply this principle to disability, but in principle it should be applicable. There may be dispute as to whether the harassment ‘relates to’ disability, in the sense of an impariment meeting the EqA definition of disability.
A pupil who is extremely shy is teased by a teacher about not being confident enough to answer questions in class. The teacher mimics him in front of the class by speaking with a stammer. Although the teacher knows the pupil does not have a speech or language disability, this conduct could still amount to disability related harassment under the Act.
Taken from para 8.14 of the 2011 consultation draft Codes of Practice on Schools, available on Equality Act consultations (EHRC archive on web.archive.org). The relevant chapter (and thus the example) did not make it into the final version of the Schools Technical Guidance. However, it seems potentially consistent with case law such as English v Thomas Sanderson Blinds above.
This may mean that a person who stammers (or indeed who doesn’t) who is teased in relation to stammering – eg mimicking a stammer, or calling someone names related to stammering – can have a claim for harassment without showing their stammer meets or is perceived to meet the EqA definition of disability. (In practice, the stammer will likely meet this legal definition anyway).
In the Equality Bill debates, the government said that the broad wording on harassment/direct discrimination ‘is also intended and does cover a case in which someone is treated as if they had a protected characteristic that they neither have nor are perceived to have at the time’ (col 254, Public Bill Cttee, 16th June 2009 (parliament.uk)).
Technical note: Past cases pointing to difficulties in showing perceived disability
Some past cases have commented that there will sometimes be difficulties in showing that a discriminator perceived a person as having a disability:
J v DLA Piper, Employment Appeal Tribunal (EAT), 2010
This case related to depression. The claimant argued that even if she did not have a disability within the Disability Discrimination Act 1995 (DDA), she was perceived by the employer as being disabled because of her history of depression. She argued that this was covered by the EU Framework Employment Directive, and that the DDA must be interpreted to reflect that.Her appeal to the EAT succeeded on a different point, under normal British law.
This case was decided under the DDA whose wording (unlike the EqA) excluded discrimination because of a ‘perceived’ disability. The EAT refused to make a reference to the EU Court to ask whether the EU Framework Employment Directive required the DDA to include perceived disability discrimination.
More relevant for present purposes are comments which the EAT made about deciding whether the employer perceived the employee to have a disability which met the DDA (now the EqA) definition of disability. The EAT said:
‘What the putative discriminator perceives will not always be clearly identifiable as ‘disability’. If the perceived disability is, say, blindness, there may be no problem: a blind person is necessarily disabled. But many physical or mental conditions which may attract adverse treatment do not necessarily amount to disabilities, either because they are not necessarily sufficiently serious or because they are not necessarily long-term. If a manager discriminates against an employee because he believes her to have a broken leg, or because he believes her to be ‘depressed’, the question whether the effects of the perceived injury, or of the perceived depression, are likely to last more or less than twelve months may never enter his thinking, consciously or unconsciously (nor indeed, in the case of perceived ‘depression’, may it be clear what he understands by the term). In such a case, on what basis can he be said to be discriminating “on the ground of” the employee’s – perceived – disability? We do not say that the question is unanswerable, but we do say that it is not so clear that we could proceed without a reference [to the EU Court].’
A 2017 case considered that those issues apply as much to the EqA as they did to the DDA:
Peninsula Business Service v Baker (bailii.org), Employment Appeal Tribunal (EAT), 2017
A lawyer had asked for reasonable adjustments for his dyslexia. He was put under covert surveillance by the employer, and claimed harassment and victimisation in respect of this. However, he did not prove to the tribunal that his dyslexia was a disability. He argued that he did not need to because the harassment related to a disability ‘asserted’ by him, which was enough.The EAT said it agreed with the reasoning in J v DLA Piper (above) that a conclusion of unlawful discrimination because of a perceived disability was problematic because of the EqA definition of disability. The EAT was not persuaded that the reasoning in DLA Piper hinged on the wording of the old DDA. In other words it might still apply under the EqA.
In any event though, it was even more problematic to suggest that, as in the present case, it was enough for the disability to be claimed (‘asserted’) by the claimant even though not accepted by the employer. The claimant’s argument failed.
For another point in this case, see Victimisation>Is knowledge of a specific protected act required?
The Employment Appeal Tribunal (bailii.org), 2017, at para 51 in Coffey commented that the issues set out in J v DLA Piper must be tackled. The EAT said that now s.13 EqA (direct discrimination) encompasses perceived discrimination, the question of whether someone is perceived to be disabled must be tackled as part of UK domestic law as well as part of EU directly applicable law (the EAT was speaking before Brexit). As the court said in DLA Piper, the answer will be clear enough in some cases, but may be very difficult in others.
Comment on showing long-term effect generally
The court in J v DLA Piper (above) particularly raised the question whether a claimant could show the substantial effect was perceived to be ‘long-term’.
On showing that a stammer was perceived to be disability, including long-term, see above Applying ‘perceived disability’ to stammering. Here I look at disabilities more generally.
Broadly speaking, the substantial effect of the impairment is ‘long-term’ if it has lasted at least 12 months at the time of discrimination, or could well last that long (above Long-term effect).
The decision in J v DLA Piper related to depression. The court said it could be difficult for a claimant to show the employer perceived this as long-term, ie broadly as something whose substantial effects could well last at least 12 months.
However I suggest it might not be difficult for a claimant to show that the employer was concerned that the effect could well last 12 months – or (if not) that it could well recur in future, causing absenteeism. This seems to be a common perception. The depression could
If an employer insists that they only saw the claimant as being briefly depressed, the employer might perhaps be
What about other types of disability? Whether the effect is long-term is an issue that very often arises when tribunals consider depression under the EqA (as in J v DLA Piper), so one can see why the court in that case stressed the need to show it was perceived as ‘long-term’. However, for many other impairments, the issue of whether they are long-term is unlikely to be an issue in practice.
One example is dyslexia, which was the subject of the Peninsula case above. As I understand it, this is inevitably long-term, ie lasting more than 12 months. Employers will generally know this. Since it is common knowledge, it should not be difficult for a tribunal to be satisifed that the employer saw the dyslexia as long-term. I suggest that the position on stammering is similar to dyslexia: see above Stammering: showing perceived long-term effect.
Technical background on ‘perceived disability’ in the Equality Act
The Court of Appeal held in Coffey (above) that the EqA includes direct discrimination because of a perceived disability. This section gives more background on the reasons for thinking the EqA includes this, and also harassment related to a perceived disability.
Consistent with wording of the Equality Act
The basic argument in favour of a ‘perceived’ protected characteristic (including disability) being covered by the EqA, for some types of claim, is that the EqA wording is sufficiently wide to cover it.
As regards direct discrimination, s.13 EqA says ‘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.’ Under EqA s.4 ‘disability’ is a protected characteristic. The EqA does not say that A or anyone else needs to actually have the protected characteristic. This is distinct from the previous Disability Discrimination Act 1995 (DDA) which in s.3A(5) provided that ‘[a] person directly discriminates against a disabled person if, on the ground of the disabled person’s disability, he treats the disabled person less favourably…’. So the DDA said that the claimant must be a ‘disabled person’. Under the EqA, the claimant need not have a disability provided the less favourable treatment is ‘because of’ disability.
In the same way, the argument is that the EqA says harassment should be ‘related to’ a protected characteristic, including disability. Its wording does not include a requirement that the claimant (or anyone) is actually disabled.
Cases on other protected characteristics
Both the legislative history of the EqA, and previous cases on protected characteristics other than disability, make clear that the wording is supposed to include discrimination based on a perceived protected characteristic.
An example of a case accepting that perceived discrimination can be unlawful for other protected characteristics, such as sexual orientation:
English v Thomas Sanderson Blinds Ltd (bailii.org), 2008, Court of Appeal.
A heterosexual man, who was known by his tormentors to be heterosexual, alleged that he was subjected by four colleagues to repeated name-calling. Everyone knew he was not gay. It was held that even so this could be unlawful harassment. It was common ground that tormenting a person who the tormentor believed was gay, but who was not, would amount to harassment.
Legislative history of Equality Act
It is clear from documents and debates when the Equality Bill was passing through Parliament that discrimination because a person was perceived to have a protected characteristic was intended to be covered: see below Passage of the Equality Act 2010.
Also para 63 of the Explanatory Notes to the EqA says the definition of direct discrimination is broad enough to cover cases where the less favourable treatment is because the victim is wrongly thought to have a protected characteristic.
Furthermore, perceived disability discrimination was specifically discussed by government ministers on more than one occasion. One example:
Of course, in this Bill we have extended protection to perception, so a person with a depressive condition who did not satisfy the Bill’s definition of a disabled person would be protected if, for example, their employer discriminated against them because he considered mistakenly that the impairment was likely to recur.
Col 1338 HL Hansard 2/3/10 (UK Parliament website).
Though not binding on a court, such statements by ministers are relevant and could be cited to a court under the principle in Pepper v Hart.
EU law?
It could be argued – but (at least before Brexit) it was not established – that under the European Framework Employment Directive, direct discrimination and harassment based on perceived disability are illegal. The EU Court’s decision in Coleman addressed discrimination by ‘association’, and held that it need not be the claimant who is disabled. A mother was allowed to claim direct discrimination because of her son’s disability.
It could be argued, using similar reasoning, that the Directive also covers perceived disability – on the basis that the discrimination or harassment is ‘on grounds of’ or ‘related to’ disability within the Directive even if the claimant does not actually have a disability. See for example this 2011 briefing by Cloisters: ‘Perceived discrimination’: the scope of the definition of disability (archive of docplayer.net) .
History: Passage of the Equality Act 2010
The Equality Bill proposals on perceived discrimination were originally announced by Harriet Harman, the Minister for Women and Equality, on 3rd April 2009:
The Equality Bill will … prohibit direct discrimination and harassment based on association and perception in respect of race, sex, gender reassignment, disability, sexual orientation, religion or belief and age and in relation to both employment and areas beyond this, such as goods, facilities and services.
This extension will implement the Coleman judgment in Great Britain and the extension to other protected characteristics is in keeping with the aims of the Equality Bill to simplify and strengthen the law.
Full written statement by Harriet Harman (Hansard).
Extending the right beyond employment, eg to provision services, went beyond the requirements of EU law and the Coleman case. There is a separate page on discrimination by association.
History: Lack of more specific wording is because of intention to keep it wide
The EqA wording intended to cover discrimination by association or perception is actually in much more general terms. It talks of discrimination or harassment ‘because of’ or ‘related to’ disability. There were calls, from the Equality and Human Rights Commission and others, for the legislation to be clearer, by expressly mentioning discrimination by association and perception. The UK government rejected an amendment to this effect in the House of Commons Committee (col 251-256, Public Bill Cttee, 16th June 2009 (UK Parliament website)). In doing so, the Solicitor General gave examples of instances, going beyond association and perception, that the government intended the wider wording to cover.
History: Must ‘perceived’ disability be substantial and long-term?
Under the EqA wording as interpreted by the court in Coffey above, the claimant must show they were perceived to meet the legal definition of disability, ie broadly perceived to have an impairment with the required substantial and long-term effect.
In the debates on the Equality Bill, arguments were put forward that the test should be easier for a claimant to satisfy. It was argued that in the United States, the Americans with Disabilities Act of 1990 (see US comparison below) specifically provides that a person is regarded as being perceived to be disabled if they are discriminated against based on that belief, whether or not the effects of the perceived disability meet the definition of disability under that Act. An amendment to achieve a similar effect was proposed for the Equality Bill.
However, the UK government opposed this amendment, which did not find its way into the EqA. The Solicitor General said on behalf of the government:
Amendment 166 would provide that a person perceived as having a disability would not have to meet the requirement that their perceived impairment must have ‘a substantial and long-term adverse effect’ on their ability to carry out day-to-day activities in order to be protected by the Bill. However, somebody who had a disability would continue to have to prove that. It would be most inequitable for somebody who did not have a disability to have a lighter test to gain protection than somebody who did, and that is the logical fault in the proposal.
Col 195-197, Public Bill Cttee, 16th June 2009 (UK Parliament website).
Thus the UK government seems to have taken the view during the passage of the Bill that there should be perceived to be an impairment meeting the legal definition of disability. This is consistent with the court’s decision in Coffey – see above What perception of disability is required? Nevertheless there are arguments that a wider test may be permissible.
History: Conditions ‘perceived’ to be likely to recur
A Minister commented in the House of Lords debates that extending protection to perception will mean that a person with a depressive condition who does not satisfy the EqA definition of a disabled person will be protected if, for example, their employer discriminates against them because he considered mistakenly that the impairment is likely to recur (my emphasis): see Col 1338 HL Hansard 2/3/10 (UK Parliament website). Note that ‘likely’ is interpreted by the courts as meaning ‘could well’ recur; it does not need to be more likely than not (see Stammering starting in adulthood).
This is consistent with the court’s decision in Coffey – see above What perception of disability is required? The court appears to have taken the full technical definition of disability into account (including on substantial effects being seen as ‘long-term’ if they could well recur) in deciding what perception by an employer etc is sufficient.
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 archived on web.archive.org).
This US position on perceived disability is also discussed in ‘Regarded as’ disability discrimination: a hidden risk every employer should understand (sennfortis.com), 2025, and in this 2011 briefing by Cloisters: ‘Perceived discrimination’: the scope of the definition of disability (archive of docplayer.net).
Also further US links.
