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. However case law on it is only just starting to come through.
UPDATE: In June 2019 the Coffey decision was upheld by the Court of Appeal, but with some differences in reasoning. This page will be updated soon. On the Court of Appeal decision see my page Perceived disability: Chief Constable of Norfolk v Coffey.
- Perceived disability is where the claimant does not actually have a disability meeting the Equality Act definition, but the discriminator perceives the person as having a disability. Below What is perceived disability?
- A claim on the basis of 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.
- A claimant’s main argument will normally be that he or she actually has a disability within the Equality Act definition (a stammer should usually be an disability within this definition), with ‘perceived disability’ being a backup arugment in case that fails. Below First argument is likely to be that the stammer is actually a disability.
- Perceived disability discrimination could be particularly useful where an employer has acted on the basis of stereotypical assumptions about a disability, since this may well be direct discrimination: below Applying ‘perceived disability’ to stammering>Direct discrimination and harassment.
- In December 2017 we had the first appeal decision upholding a claim for perceived disability discrimination, namely Chief Constable of Norfolk v Coffey. The EAT held in this case that a perceived potential disability (ie something that could well start to have substantial effects in future) would also suffice. See below Perceived disability discrimination is unlawful.
- What perception must the employer etc have? The EAT said in Coffey that the employer must perceive the claimant to have the features set out in the legal definition of disability, broadly an impairment with a substantial long-term effect on normal day-to-day activities. See below What perception of disability is required?
- However, there are arguments why this test may be wider in some ways. For example a perception that there may potentially be a disability at present might be argued to be sufficient.
- The employer etc need not know the legal definition of disability.
- Previous cases such as J v DLA Piper have suggested it may be difficult to show that an employer perceived that the elements of the ‘disability’ definition were met: see Cases pointing to difficulties. However, I would argue it may not be as difficult to do so as that case suggests: see Some thoughts on ways to show perceived disability (and as regards stammering Showing perceived disability: stammering).
- Perceived discrimination in relation to stammering is discussed below in Applying ‘perceived disability’ to stammering.
- For harassment at least, there may be a claim even if there is no ‘perceived’ disability. In other words there need not be anything perceived to meet the legal conditions of being a disability. See below Where there is no disability, actual or perceived.
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, so it is not a disability within the Equality Act. Nevertheless, in certain types of claim (below Limited to ‘direct discrimination’ and harassment), the tribunal may hold that 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 may well 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 Direct discrimination or harassment.
‘Perceived’ disability is not itself a legal term. For direct discrimination, legally the question is whether the less favourable treatment by the employer etc is ‘because of disability’. The argument is that the actions of the employer can be ‘because of disability’ if the employer thinks there is a disability, even if the claimant does not actually have one as defined in the Equality Act. In the same way, harassment by an employer etc may be ‘related to disability’ even if the victim is not actually disabled. The reason why perceived disability is sufficient is much the same as why discrimination by association is unlawful (where the claimant does not have a disability but someone else does).
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 in late 2017. On this case, and the arguments generally for perceived disability discrimination falling within the Equality Act, see below Perceived disability discrimination is unlawful. The more difficult issues arise as regards showing the employer has the required perception, which is addressed lower down this page starting with What perception of disability is required?.
Limited to ‘direct discrimination’ and harassment
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 EAT in Coffey (below) did in fact 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.
For direct discrimination and harassment, it may well become standard 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 stereotypical assumptions about a disability, since this may well be direct discrimination – see below Applying ‘perceived disability’ to stammering>Direct discrimination and harassment.
Perceived disability discrimination is unlawful
There seems little doubt that direct discrimination because of perceived disability, and harassment related to perceived disability, are unlawful under the Equality Act.
Chief Constable of Norfolk v Coffey, 2017, Employment Appeal Tribunal (EAT).
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 and guidance was look at candidates individually and assess their ability to do the job, which was not done. The Norfolk Constabulary was concerned she would not be fully operational and would have to be put on restricted duties, now or in future – though medical evidence was that her hearing levels were stable. She claimed direct discrimination.
The EAT upheld the employment tribunal’s decision that there was direct discrimination because of perceived disability. This applied even if the employer’s perception was of a ‘potential’ disability, ie something that could well have a substantial effect in future.
The EAT said the issue is whether the claimant was perceived to have an impairment with the features which are set out in the Equality Act definition of disability. However it did not matter whether the alleged discriminator was familiar with the definition of disability. See further below What perception of disability is required?
The EAT also upheld the tribunal’s decision that the other requirements for direct discrimination were met in this case. In deciding whether the claimant was treated less favourably, the tribunal had to compare how someone else would be treated who had the claimant’s actual abilities (ie someone who was able to be fully operational as a police officer), not the abilities perceived by the employer. The employer’s flawed belief in her lack of ability should not be taken into account as a material difference. ‘A stereotypical and incorrect assumption that a claimant has characteristics associated with a disability may found a claim for direct discrimination’ (Aylott v Stockton on Tees BC).
The EAT said in Coffey there is little doubt that the Equality Act is broad enough to include someone perceived to have a protected characteristic, and the Act makes no difference in this respect between disability and other protected characteristics. More on the arguments for this: below More on why the EqA includes a ‘perceived’ protected characteristic, including disability.
What perception of disability is required?
The EAT said in Chief Constable of Norfolk v Coffey (above) that the issue is whether the alleged discriminator perceived the claimant to have an impairment with the features set out in the Equality Act – ie the features of the legal definition of disability. It did not matter though 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 perceived the claimant as having 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 seems that all the futher Equality Act provisions and case law which modify and interpret that definition must also be taken into account. For example:
- In the Coffey case itself, the EAT said it was enough that the employer perceived the claimant as having a potential disability which fell within Schedule 1 para 8 of the Equality Act. Under para 8, a progressive condition can have effects on normal day-to-day activities which are not yet substantial, yet still be a disability under the Act if the effects could well become substantial in future.
- Under Schedule 1 para 2(1)(b) of the Act, 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 would presumably be perceived as long-term if the employer perceived they could well last 12 months.
- Under Schedule 1 para 2(2) of the Act, 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 test.
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?
Employer etc need not know the definition of disability
The EAT held in the Coffey case that the alleged discriminator does not need to know the legal definition of disabilty, and if they do know it to some extent (as the employer did in that case) it does not matter if their knowledge of it is mistaken or incomplete.
The employer there thought that the police constable’s mild hearing impairment would not have a substantial effect on normal day-to-day activities, and believed that it was therefore not a disability within the Equality Act. The employer did not realise that under Schedule 1 para 8 of the Act a progressive condition which could well have a substantial effect in future could be seen as a disability now. The EAT also pointed out (and similarly the employer may well not have realised this) that under the EU Court decision in Ring the impairment would necessarily be seen as having the required substantial effect if it led to the constable being put on restricted duties. Since the employer perceived that the constable might well have to be put on restricted duties, legally the employer perceived the constable to be disabled.
Possible arguments for a wider test?
Perception that there may be a disability?
It may be possible to argue that it is enough that the employer perceived there may be a disability, and discriminated because of that. Say the employer is concerned 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 direct discrimination.
This could be argued to be consistent with the wording of the Equality Act.
There is also some support for it in the Coffey case, where the EAT said a perception of a potential future disability fell within the Equality Act. The EAT was talking about something which may have substantial effects in future. However might it be argued that the same logic applies to a potential present disability? The EAT gave three reasons for including a potential future disability of which the second and third (Ring case, and gap in the law) seem also to support a perceived present disability being within the Equality Act. However this argument would need to be tested in the courts.
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, 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.
Might the reversal of burden of proof help?
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. More on shift of burden of proof.
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 would mean there is no requirement that anyone be perceived to meet the legal conditions of having a disability. See below Where there is no disability, actual or perceived.
Practicalities of showing the required perception of disability
We leave aside here the possible arguments for a wider test (above), and assume that the claimant must show on a balance of probabilies that the claimant was perceived to have an impairment with the features which are set out in the Equality Act definition of disability. See above What perception of disability is required?
Cases pointing to difficulties
J v DLA Piper, Employment Appeal Tribunal (EAT), 2010
This case relating 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.
The 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 is 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].”
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 by the claimant even though not accepted by the employer. The claimant’s argument failed.
The EAT in Coffey above confirmed that the issues set out in J v DLA Piper must be tackled. Now that 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.
On showing that a stammer was perceived to be disability, see below Showing perceived disability: 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. I focus on direct discrimination (rather than harassment) and go here on the basis that the claimant must show he or she was perceived to have an impairment meeting the technical definition of disability (ie leaving aside wider possible arguments as outlined below in Perceived disability may need to meet the legal definition).
‘Substantial’ effect on normal day-to-day activities
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 below ‘Substantial’ effect on normal day-to-day activities: stammering.
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 Stammering starting in adulthood).
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 might 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 was liable to 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 could be questioned 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’ rather than a reaction to adverse circumstances, as discussed in J v DLA Piper. This may also be possible on a balance of probablities, for example based on common public perceptions of mental health issues and also the perceived time for which effects might well last, but it is not something I shall discuss.
What about other types of disability? Whether the effects are long-term is an issue that often arises in cases considering whether a claimant’s depression is a disability. In a case on depression such as J v DLA Piper, one can therefore see why the court 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 below Long term effect: stammering.
Bear in mind that 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.
Applying ‘perceived disability’ to stammering
First argument is likely to be that the stammer is actually a disability
Perceived disability may be relevant if a stammer does not actually have a substantial (i.e. more than minor or trivial) effect on normal day-to-day activities, so that it does not meet the legal definition of disability.
Normally 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. What is likely in practice is that the person who stammers will argue that the 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 actually being a disability is that claims for reasonable adjustments, or ‘disability arising from discrimination’ under s.15 EqA are possible: see above Limited to ‘direct discrimination’ and harassment.
So far as a claimant is relying on perceived rather than actual disability, he will need 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 direct discrimination or harassment sufficient to reverse the burden of proof.
A particular type of situation which can be direct discrimination is where the employer stereotypes what a person who stammers could do: see Stereotypes and assumptions. This type of direct discrimination was reconfirmed by the EAT in the Coffey case itself, citing Aylott v Stockton on Tees BC. 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. This may well be unlawful as direct discrimination on the basis of perceived disability, even if the stammer is not actually a disability.
As discussed above under What perception of disability is required?, the EAT in Coffey held that the ‘disability’ perceived by the employer should be such as to meet the technical definition of disability in the Equality Act. However:
- There are arguments that a wider test may be permissible but I shall leave that aside here.
- I also leave aside the possibility that it may be possible to shift the burden of proof to the employer as regards whether he had the necessary perception.
- Also I do not focus on harassment here, since for this it seems the employer need not actually perceive anyone to have a disability so different points arise: below Where there is no disability, actual or perceived.
Leaving aside those possible extra arguments the claimant may have, it seems a claimant for direct discrimination must show on a balance of probabilities that he or she was perceived as having an impairment with a ‘substantial and long-term adverse effect’ on the person’s ability to carry out day-to-day activities. The claimant would need to show it was more likely than not that the employer perceived it in this way. The detailed Equality Act provisions and case law modifying and explaining that basic definition seem to apply in modifying and explaining what the employer has to perceive – see above What perception of disability is required?
How difficult is it to show a stammer was perceived to be a disability?
Some cases such as DLA Piper point to difficulties in showing that an employer etc perceived someone as meeting the technical definition of disability, at least sometimes: see above Cases pointing to difficulties. However the Coffey decision illustrates that it need not be that difficult, and I suggest above in Some thoughts on ways to show perceived disability that even on the kind of facts in DLA Piper it need not be as difficult as the court there suggested. However, a claimant arguing perceived disability should be aware that they may be breaking new ground legally, which may be challenging.
I shall take in turns the question of showing the employer perceived (1) the impairment as having a substantial (ie more than minor or trivial) adverse effect on ability to carry out normal day-to-day activities and (2) that effect as being long-term:
On a claim for direct discrimination, there is an argument 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). 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.
The court’s decision on whether discrimination because of the perception of the stammer has been proved may therefore be tied in with its deciding whether there was perceived to be a disability. If discrimination is shown, I suggest that 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’.
It will not necessarily be easy to show the employer discriminated because of the stammer (or the employer’s perception of it). However
- this may be feasible depending on the facts, like in the Coffey case;
- this is an issue that arises on any direct discrimination claim, not just where perceived disability is involved; and
- the claimant may be able to show a prima facie case of direct discrimination so as to shift the burden of proof to the employer.
Long-term effect: stammering
I consider this as regards some other disabilities above: Some thoughts on ways to show perceived disability>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 before a tribunal 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 ‘may well’ last 12 months (see the test for ‘long-term’ which is considered on Stammering starting in adulthood).
Even if an employer’s witness stands by their position, the tribunal may well find it implausible.
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 disputes that the stammer itself is a disability, there may in any event be direct discrimination or harassment related to a perceived mental disability.
Where there is no disability, actual or perceived
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).
The EAT 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, the Act requires that the discrimination be ‘because of disability’ (direct discrimination). Unlike the Disability Discrimination Act 1995 (DDA) which required discrimination ‘on the ground of the disabled person’s disability’, the Equality Act no longer says the claimant must have a 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.
Turning to the legislative history of the 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.
Further, 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.
Also it can 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 could claim direct discrimination because of her son’s disability.
It can 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) .
‘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 others, for the legislation to be clearer in 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.
Under the Equality Act wording, it is possible that 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, and it 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.’
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 broadly consistent with the EAT’s decision in Coffey – see above What perception of disability is required? Nevertheless there are arguments that a wider test may be permissible.
A Minister commented in the House of Lords debates that extending protection to perception will mean 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). 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 EAT’s decision in Coffey – see above What perception of disability is required? – which 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.
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.