October 13, 2018

Discrimination by perception happens when an employee is treated less favourably because others believe they have a protected characteristic, even if in reality, they do not.

For example, this would be treating an employee less favourably because you believe they are homosexual.

It could also occur during the application process, for example, an employer rejects a job application from a white woman, who they wrongly believe is Chinese because she has a Chinese sounding surname.

Similarly to associative discrimination, discrimination by perception does not extend the protected characteristics of marriage and civil partnership or pregnancy and maternity.

Discrimination by perception also does not apply in cases of indirect discrimination.

The History Of Discrimination By Perception

Discrimination based on association or perception is not a new concept, and was enshrined in case law, but with limited application.

The Government then reconsidered the law and extended the Equality Act 2010 to include discrimination by association and perception.

Case Law

An interesting case regarding discrimination by perception is Chief Constable of Norfolk v Coffey.

In this case, the Employment Appeal Tribunal confirmed that rejecting a job applicant because of a perception that a condition that may later become a disability is direct discrimination.

Mrs Coffey was an employee of Wiltshire Constabulary and was promoted to Police Constable. As part of this process, she underwent a medical examination, during which it was discovered that her hearing fell below the standard required by the Home Office.

Wiltshire Constabulary then arranged for Mrs Coffey to undergo a functionality test which she subsequently passed. Mrs Coffey worked as a Police Constable without any issues.

Mrs Coffey then applied to transfer to Norfolk Constabulary. As part of this process, she again underwent a medical assessment. However, Norfolk Constabulary rejected her application to transfer, on the basis that they considered she would have to be placed on restricted duties in the future due to her hearing, as they considered that the condition was degenerative.

Mrs Coffey subsequently brought a claim for direct disability discrimination.

It was found that Norfolk Constabulary had subjected Mrs Coffey to direct disability discrimination, as they had perceived her to be potentially disabled due to her degenerative hearing condition.

The Employment Appeal Tribunal upheld the decision, as even though Mrs Coffey was not disabled and would not have become disabled in the near future, the fact that Norfolk Constabulary had acted based upon perception meant that direct disability discrimination had occurred.

Discrimination by perception is not perhaps as obvious as other forms of discrimination, and will only occur in unique circumstances. This, therefore, makes it more difficult for employers to anticipate when they may be liable for a claim for discrimination by perception. In these circumstances, employers should always seek specialist legal advice.

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About the author 

James Rowland

James is the Commercial Director at Neathouse Partners and regularly writes articles surrounding issues in HR & Employment Law. Outside of the office, James is a keen Cricketer, playing in the Cheshire League for Nantwich CC. He also loves going to watch his football team, Crewe Alexandra. Feel free to connect with James on LinkedIn.

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