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Perceived disability

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Last updated 24th July 2019.

This is where the discrimination is not based on an actual disability, as defined in the Equality Act. Rather the employer etc mistakenly perceives there to be a disability. Direct discrimination and harassment in relation to ‘perceived disability’ should be covered by the Equality Act.

Table of page contents

Summary

What is perceived disability?

Perceived disability is where the claimant does not actually a disability meeting the Equality Act definition, but the discrimininator sees them as having a disability. For example the tribunal may decide the impairment does not have a substantial effect on normal day-to-day activities, and so is not a disability within the Equality Act. Nevertheless, in certain types of claim (below Limited to ‘direct discrimination’ and harassment), there is unlawful discrimination if the employer perceived there to be an impairment having the required long-term substantial effect, and discriminated because of that perceived impairment. An example:

An applicant mentions in a job application for a sales role that he has a stammer. The employer assumes that a person who stammers would not have the communication skills required for this role, and so does not invite them for interview. The employer does not look at the individual’s actual abilities.

On a tribunal claim the claimant could probably show that his stammer is actually a disability within the Equality Act definition. However even if the tribunal did not accept it was a disability, the employer would probably be liable for direct discrimination on the basis of perceived disability.

Note: Perceived disability discrimination could be particularly useful in a case such as this where an employer acts on stereotypical assumptions about a disability, as it may well be direct discrimination. See further below Applying ‘perceived disability’ to stammering>Summary.

When the Equality Act was passed, the intention of the government was that discrimination because of a ‘perceived’ protected characteristic, including disability, should be covered. However, this was not confirmed by an appeal decision of the courts until the Coffey case (below) in late 2017.

Limited to ‘direct discrimination’ and harassment

A claim for direct discrimination or harassment may be based on a perceived disability.

Indeed a claim for harrassment can probably go further, in that no one needs to be perceived to have a disability – the harassment only needs to be ‘related to’ 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 types of claim have different wording both in the Equality Act and EU law, which is likely to mean the claimant must actually have a disability as defined in the Act. The Employment Appeal Tribunal in Coffey (and perhaps the Court of Appeal as regards discrimination arising from disability) did leave 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; and
  • any argument that perceived disability applies to discrimination arising from disability would be difficult because of the lack of support for it in the wording of s.15 EqA. Also s.15 is not to be found in EU law, so it is difficult to argue that EU law requires a wider interpretation of s.15.

For direct discrimination and harassment, it may well become common to claim ‘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.

As noted above, perceived disability discrimination could be particularly useful where an employer has acted on the basis of a stereotypical assumption about a disability, since the assumption may both give rise to direct discrimination and also be a perception of disability – see below Applying ‘perceived disability’ to stammering.

Perceived disability discrimination is unlawful

It is now accepted that direct discrimination because of perceived disability is unlawful under the Equality Act. There is little doubt that harassment related to perceived disability is also unlawful.

For a long time there were no appeal decisions upholding a claim for perceived disability. That changed with the Coffey decision in December 2017, which was upheld by the Court of Appeal in June 2019:

Chief Constable of Norfolk v Coffey, Court of Appeal, 2019.
A serving police officer was turned down for a transfer to Norfolk because she had some hearing loss. The impairment meant she fell only just short of National Recruitment Standards. Guidance in these circumstances was to look at candidates individually and assess their ability to do the job, which was not done. 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 – though medical evidence was that her hearing levels were stable. She claimed direct 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 it also perceived the impairment to have some limited effect at the moment.

The parties agreed – and the Court of Appeal said it 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 be discrimination arising from disability (which the employer can seek to justify) rather than direct discrimination. 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.

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 normally 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.

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’). The employer probably takes for granted that this will have lasted more than a year, or could well do. The employer therefore perceives the person has a disability within the Equality Act, because it believes the person has 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.

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 it does not see someone who stammers as ‘disabled’ but that is irrelevant.

This approach in Coffey – that the features of the legal definition of disability should 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?

I say above “must normally show” because it seems that all further Equality Act provisions and case law which modify and interpret the definition of disability must also 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 Equality Act Schedule 1 para 8. Under para 8, a progressive condition which has some (not substantial) effect on normal day-to-day activities is a disability if those effects could well become substantial in future. The Acting Chief Constable in Coffey who rejected the claimant perceived 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 police constable’s mild hearing impairment would not have a substantial effect on normal day-to-day activities, and believed it was therefore not a disability within the Equality Act, because she did not know about Sch 1 para 8. She 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) it resulted in the constable being put on restricted duties – see next heading.

Normal day-to-day activities

Cases and guidance say that as regards employment discrimination, broadly a work activity is seen as a normal day-to-day activity if it is found in a range of different work situations. 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 not be able to do the job because a stammer, or indeed another disability, is likely to be (legally) a perception that the disability 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 as to how the disability might develop in future, but the same applies to a belief as to the effects of a disability 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 will either have lasted more than a year, or could well do in future (Long-term effect below).

There is therefore probably a perceived disability. The clearest argument that there was direct discrimination because of this perceived disability will probably be if the employer’s belief was a stereotypical assumption about stammering.

‘Long-term’ effect

Under EqA Sch 1 para 2(1)(b), effects should be seen as long-term (even if they haven’t already lasted 12 months) if they ‘could well’ last 12 months: see Stammering starting in adulthood. Therefore they will presumably be perceived as long-term if the employer perceives they could well last 12 months.

Recurrence

Under EqA Sch 1 para 2(2), if an impairment ceases to have a substantial adverse effect, it is to be treated as continuing to have that effect if the effect could well recur. A Minister said during the passage of the Bill that a person with a depressive condition who does not satisfy the Equality Act’s definition of a disabled person would be protected if, for example, their employer discriminates against them because he considered mistakenly that the impairment is likely to recur – see below Conditions ‘perceived’ to be likely to recur. This is consistent with the approach in Coffey. The tribunal looks at whether the employer perceives the person as meeting the test in para 2(2), even though the employer was not familiar with the legal test.

Possible arguments for a wider test?

Generally this page goes on the basis that the claimant must show on a balance of probabilities that the discriminator perceived that all the elements in the statutory definition of disability were 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 may be possible to argue that it is enough that the employer perceived there may be or could well be a disability, and discriminated because of that. Say the employer is concerned that an impairment may have a substantial effect in workplace activities. Turning the claimant down for the job might be argued to be because of a (possible) disability, and therefore potentially direct discrimination.

This could be argued to be consistent with the wording of the Equality Act. However the argument would need to be tested in the courts.

Mix and match?

What if the employer perceived for example that the impairment had a substantial effect but not that it was long-term. But the impairment was in actual fact long-term. 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 there are facts from which the tribunal could decide, in the absence of an adequate explanation, that the employer or service provider etc acted unlawfully (ie broadly if the claimant has shown a prima facie case), then it is for the employer etc to prove it did not act unlawfully. This is not seen as applying to the question whether the claimant has a disability – the burden of proving that rests on the claimant.

However, it might perhaps be argued that this reversal of burden of proof can apply to the issue of what peception 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 unfavourable 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 be an important part of, the employer’s perception that the claimant was disabled. More on shift of burden of proof.

Not needing to prove all elements of the disability definition?

It may 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 (link to docplayer.net). A claimant might argue that if the tribunal disagrees with that argument (as it very likely will following Coffey), the matter should be referred to the EU Court of Justice (before Brexit!). However many claimants may be reluctant to take a case as far as Luxembourg, there may not be time before Brexit, and the outcome of such a case would be uncertain to say the least.

Harassment even if no ‘perceived’ disability

Note that for harassment at least, there may be a claim even if no one is ‘perceived’ to have a disability. This should mean there is no requirement for anyone to be perceived as meeting the legal conditions of having a disability. See below Where there is no disability, actual or perceived.

Applying ‘perceived disability’ to stammering

I’m going to focus here on direct discrimination, and also leave aside the possible wider arguments that that the claimant need not show the employer etc believed the elements of the legal definition of disability were met.

I should mention there are Past cases pointing to difficulties in showing perceived disability, but those are on on depression and dyslexia whereas I’m focussing here on stammering. I do say something about other disabilities below though: Some thoughts on ways to show perceived disability.

Also, even though I suggest below it may be fairly easy to show that the employer etc has the required perception of disability, a claimant arguing perceived disability should be aware that they may be breaking new ground legally, as the law is still developing.

Summary

I think the main restriction on applying perceived disability to stammering is likely to be the boundaries of ‘direct discrimination’, rather than issues of whether the employer etc perceived to be a disability. To take an example:

Example: An applicant mentions in a job application for a sales role that she has a stammer. The employer assumes that a person who stammers would not have the communication skills required for the job, so does not invite her for interview. The employer does not look at her actual abilities. This is likely to be unlawful as direct discrimination on the basis the employer has made a stereotypical assumption.

How about perceived discrimination? The employer’s assumption that a person who stammers would not have the communication skills required for this job appears to be legally a perception that the person’s impairment has a substantial effect on normal day-to-day activities – in the same way as the Court of Appeal in Coffey held that the employer had such a perception where it thought the claimant would be unable to perform her full duties as a police officer. The employer probably takes for granted that this effect of the stammer will have lasted more than a year, or could well do.

Therefore it seems likely that the job applicant can claim direct discrimination because of a perceived disability, even if she does not actually have a disability within the Equality Act definition.
In practice it may be difficult to show the rejection had anything to do with the stammer.

This illustrates how the stereotypical assumption which makes it direct discrimination can itself be a substantial part of the perception that the impairment is a disability (as happened in the Coffey case itself).

However where any misperception of the claimant’s abilities is not enough to make it ‘direct discrimination’, perceived disability cannot normally be claimed anyway. The boundaries of direct discrimination are therefore important. See further below Direct discrimination or harassment.

First argument is likely to be that the stammer is actually a disability

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

Very often a claimant should be able to show their stammer meets the legal definition of being an actual disability, so that ‘perceived disability’ is not required. In any event, what is likely in practice is that the person who stammers will argue that their stammer meets the legal definition of disability, but also argue in the alternative (by way of backup argument) that the claim falls within the Equality Act as discrimination because of a perceived disability.

An important advantage of the stammer being an actual rather than perceived disability is that claims for reasonable adjustments and ‘disability arising from discrimination’ under s.15 EqA are possible: see above Limited to ‘direct discrimination’ and harassment.

Direct discrimination or harassment

So far as a claimant relies on perceived rather than actual disability, he needs to show there is direct discrimination or harassment (see above Limited to ‘direct discrimination’ and harassment), or at least show a prima facie case of them sufficient to reverse the burden of proof.

As I say in this section’s Summary above, I think the main restriction on applying perceived disability to stammering is likely to be the boundaries of ‘direct discrimination’, rather than issues of whether the employer etc perceived to be a disability.

Direct discrimination based on a stereotypical assumption is particularly suitable for ‘perceived disability’ claims because the stereotypical assumption can also be a large part of the employer’s perception that there was a disability. I give an example of this in the Summary above. However that example is one where it will often be difficult to show the stammer had anything to do with the rejection by the employer. What about other examples such as:

A job applicant for a customer service post does not mention the stammer in her job application. However when invited for interview she asks for extra time for the interview because she has a stammer. The employer withdraws the offer of an interview.

This and one or two other examples are discussed on Stereotypes and assumptions>What counts as a stereotypical assumption? It is not clear whether this is direct discrimination or not. There may arguably a stereotypical assumption – or the applicant may at least be able to argue that a stereotypical assumption was a contributory factor in the employer’s decision so as to make it direct discrimination. Even if it is not direct discrimination so she cannot claim for perceived disability, it seems especially probable in her case that a tribunal would see her stammer as an actual disability given that she needs more time in the job interview: see the link above. Having an actual disability, she could claim under the Equality Act for discrimination arising from disability.

Stammering: showing perceived ‘substantial’ effect on normal day-to-day activities

Often the direct discrimination will be based on a stereotypical assumption. Here the assumption itself will often also be the perception that the stammer has a substantial effect on normal day-to-day activities. Take the example in the Summary above. Editing it down:

Example: An applicant mentions in a job application for a sales role that she has a stammer. The employer assumes that a person who stammers would not have the communication skills required for the job, so does not invite her for interview. The employer does not look at her actual abilities. This is likely to be unlawful as direct discrimination on the basis the employer has made a stereotypical assumption.

How about perceived discrimination? The employer’s assumption that a person who stammers would not have the communication skills required for this job appears to be legally a perception that the person’s impairment has a substantial effect on normal day-to-day activities – in the same way as the Court of Appeal in Coffey held that the employer had such a perception where it thought the claimant would be unable to perform her full duties as a police officer.

In the case of employment discrimination, almost any work activity will be a normal day-to-day activity (except some ‘specialised’ activities). A stereotype – and therefore a perception – that someone cannot adequately do a job will, almost be definition, generally be a perception that their impairment has a substantial effect on normal day-to-day activites.

What about direct discrimination not based on a stereotype? I suggest that it will normally be fairly easy to show the employer saw the stammer as having a more than minor or trival effect on normal day-to-day activities, provided the claimant shows that the employer discriminated because of the stammer (or a perception of it), or shows a prima facie case so as to reverse the burden of proof on this. Again almost any work activity will be a normal day-to-day activity. If the employer did not see the stammer as having such an effect, why would he discriminate? The alternative is that the employer is arguing to the tribunal: “I’m so prejudiced that I find even a minor or trivial stammer intolerable!” Even if the employer does assert this, the tribunal may well not believe him. Accordingly, I suggest that if discrimination is shown, a court should generally be able to infer that the employer saw the impairment as having the substantial effect required for it to be a ‘disability’.

Stammering: showing perceived long-term effect

In brief, I suggest it should not be difficult to persuade a tribunal that the employer more likely than not took it for granted that this effect of the stammer will have lasted more than a year, or could well do in future. It is enough that the employer perceived the effects ‘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 how the employer is ‘more likely than not’ to perceive stammering (which is the burden of proof), stammering is also commonly regarded as long-term. There are in fact some instances where stammering may not necessarily be long-term (see Stammering starting in adulthood). However I suggest this should not matter since an employer is likely to go by the common perception of stammering, unless exceptionally an employer can bring convincing evidence that he thought differently. I suggest this common perception is – at the very least – that adult stammering lasts longer than a year or could well last longer than a year, which suffices under the Equality Act. I think the common perception is in fact that adult stammering lasts much longer. (In fact, an adult who stammers can expect to be living with the stammer for the rest of their life, though it may well become not so much of a problem).

The tribunal has to decide whether the claimant has shown that the employer more likely than not saw the stammer as long-term (unless there can be a shift in burden of proof). If an employer’s decision-maker insists that he or she 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 them 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 as regards some other disabilities above: Some thoughts on ways to show perceived disability>Long-term effect.]

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, depending on the particular facts there may in any event be direct discrimination or harassment related to a perceived mental disability.

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 normal Disability Discrimination Act (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 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 UK law.

This case was decided under the DDA whose wording (unlike the Equality Act) excluded discrimination because of a ‘perceived’ disability. The EAT refused to make a reference to the European Court to ask whether the EU Framework Employment Directive required the DDA to include perceived disablity discrimination.

More relevant for present purposes are comments which the EAT made about deciding whether the employer perceives the employee to have a disability which meets the DDA (now the Equality Act) 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 European Court].”

A 2017 case considered that those issues apply as much to the Equality Act as they did to the DDA:

Peninsula Business Service v Baker (link to 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 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 Equality Act 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 Equality Act.

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) 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 Equality Act 2010 (direct discrimination) encompassed 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. As the court said in DLA Piper, the answer will be clear enough in some cases, but may be very difficult in others.

Some thoughts on ways to show perceived disability

On showing that a stammer was perceived to be disability, see above Applying ‘perceived disability’ to stammering.

However I know this website is also looked at by those with other disabilities, so here I consider the issue somewhat more generally, taking depression and dyslexia which were the subject of the J v DLA Piper and Peninsula cases above (Past cases pointing to difficulties in showing perceived disability). I focus on direct discrimination rather than harassment, and go on the basis that the claimant must show he or she was perceived to have an impairment meeting the technical definition of disability.

‘Substantial’ effect on normal day-to-day activities

Often the direct discrimination will be based on a stereotypical assumption. Here the assumption itself will often also be the perception that the stammer has a substantial effect on normal day-to-day activities. Take the example in Applying ‘perceived disability’ to stammering>Summary above. See also Stammering: showing perceived ‘substantial’ effect on normal day-to-day activities.

Otherwise, on a claim for direct discrimination, there is an argument that it will normally be fairly easy to show the employer saw the impairment as having a more than minor or trival effect on normal day-to-day activities, provided it is shown that the employer discriminated because of how they perceived the impairment. If the employer did not think this, why would he discriminate? See further above Stammering: showing perceived ‘substantial’ effect on normal day-to-day activities.

Long-term effect

Broadly speaking, to be ‘long-term’ the substantial effect of the impairment must have lasted at least 12 months, or be such that it may well do so (see above Long-term effect.).

The decision in J v DLA Piper (above) 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 may well last at least 12 months.

However I suggest it may not be difficult for a claimant to show the employer was concerned that the condition could well last 12 months – or (if not) that it could well recur in future, causing absenteeism, even if a bout of depression did not last long. This seems to be a common perception. The depression could therefore be a perceived disability because it was perceived as something which ‘could well’ be long-term or was likely to recur. Perceived likelihood of recurrence was an example given expressly by a government minister in one of the Equality Bill debates – see below Conditions ‘perceived’ to be likely to recur. If the employer insists they only saw the claimant as being briefly depressed, the employer might be asked in cross-examination eg did the employer really not think the depression ‘may well’ continue more than 12 months, at least off and on, and if not why did the employer discriminate?

Another issue specifically for someone arguing perceived depression may be showing (on a balance of possibilities) that the employer perceived the depression as an ‘impairment’. It remains to be seen what view the courts take on this. For example it may be helpful that the employer viewed the impairment as long-term, as discussed in the previous paragraph.

What about other types of disability? Whether effects are long-term is an issue that often arises in when considering depression as in J v DLA Piper, so one can therefore see why the court there stressed the need to show the condition was perceived as long-term. However for many other disabilities, 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.

Final points

The claimant only needs to prove facts on a balance of probabilities (unless the burden of proof can be shifted to the employer) – ie that it is more likely than not that the employer perceived there to be a disability.

Also, even though I suggest above it will not necessarily be as difficult as sometimes thought to show that the employer has the required perception, a claimant arguing perceived disability should be aware that they may be breaking new ground legally, as the law is still developing.

Where there is no disability, actual or perceived

At least in the case of harassment, it seems there can be an Equality Act claim without any disability, actual or perceived. The harassment just needs to be ‘related’ to disability.

From the Employment Code, para 7.10
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.
(The authority for this is the Court of Appeal decision in English v Thomas Sanderson Blinds below).

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 (link to 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, but seems to be consistent with case law such as English v Thomas Sanderson Blinds below.

In the Equality Bill debates, the Government said 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 (link to UK Paliament website))

This may mean that a person who stammers (or indeed who doesn’t) who is teased in relation to stammering – e.g. 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 legal definition of disability. (In practice, the stammer will likely meet the legal definition anyway).

Technical background on ‘perceived disability’ in the Equality Act

The Court of Appeal held in Coffey (above) that the Equality Act includes direct discrimination because of a perceived disability. This section gives more background on the reasons for thinking the Act includes this, and also harassment related to a perceived disability.

Consistent with wording of the Equality Act

As mentioned above (What is perceived disability?), the basic argument in favour of discrimination in respect of a perceived protected characteristic (including disability) being covered by the Equality Act is that the wording of the Act 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. This is distinct from the 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…”. The DDA said the claimant must be a “disabled person”. The Equality Act no longer says that; 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 Equality Act says harassment should be “related to” disability. Its wording does not include a requirement that the claimant (or indeed anyone) is actually disabled.

Cases on other protected charactistics

Both the legislative history of the Equality Act and 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 (link to 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.

Also para 63 of the Explanatory Notes to the Act 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 (link to 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 it has not been established – that under the European Framework Employment Directive direct discrimination and harassment based on perceived disability are illegal. The European Court’s decision in Coleman addressed discrimination by ‘association’, and held it does not have to 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 (link to docplayer.net) .

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 (link to Hansard).

Extending the right beyond employment, e.g. to provision services, went beyond the requirements of European law and the Coleman case. There is a separate page on discrimination by association.

Lack of more specific wording is because of intention to keep it wide

The Equality Act 2010 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 from others, for the legislation to be clearer by expressly mentioning discrimination by association and perception. The Government rejected an amendment to this effect in the House of Commons Committee (col 251-256, Public Bill Cttee, 16th June 2009 (link to 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.

Must ‘perceived’ disability be substantial and long-term?

Under the Equality Act wording as interpreted by the court in Coffey above, the claimant must show he was perceived to meet the legal definition of disability, i.e. 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 Act.

However, the government opposed this amendment, which did not find its way into the Equality Act. 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 (link to UK Parliament website).

Thus the 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.

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 Equality Act’s 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 (link to UK Parliament website). Note that ‘likely’ is interpreted by the courts as meaning only ‘could well’ recur; it does not have 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 seems to take 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 postion on perceived disability is also discussed in this 2011 briefing by Cloisters: ‘Perceived discrimination’: the scope of the definition of disability (link to docplayer.net).

Also further US links.

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