The Equality Act 2010 came into force on 1 October 2010, introducing new rules relating to discrimination by association and perception.
Discrimination by association refers to the situation where an individual is discriminated against because of the characteristic of another person, namely someone with whom they are associated. For example, discrimination by association would cover the situation where an employee is dismissed because of his or her partner’s religious beliefs even if the employee does not share those beliefs. Discrimination by perception is discrimination against someone because he or she is wrongly perceived to have a certain protected characteristic, for example where an employer believes an employee is gay, or is of a particular race, and treats him or her less favourably as a result. This would be unlawful discrimination under the Equality Act 2010.
The concept of discrimination based on association and perception is not in itself a new concept and actually existed under case law, to a limited extent, prior to the introduction of the Equality Act. Most notably, the case of Coleman v Attridge Law and another [2008] extended the old legislation to cover associative disability discrimination. In the case of Coleman, the claimant, who was the primary carer for her disabled son, claimed that she had been treated less favourably on account of her son’s disability and therefore discriminated against on the basis of disability. Crucially, the claimant herself was not disabled.
Following a reference to the European Court of Justice, the tribunal held that it was not necessary for an employee to be disabled to bring a claim for direct disability discrimination under the Disability Discrimination Act 1995, if he or she is discriminated against because of an association with a disabled person. The Employment Appeal Tribunal upheld this decision.
Following the decision in Coleman the Labour Government decided to “extend the prohibition against associative and perceptive direct discrimination and harassment to other strands and areas where this does not currently apply”. Therefore, under the Equality Act, direct discrimination claims based on association or perception are now allowed in respect of all protected characteristics, except for marriage and civil partnership or pregnancy and maternity. The effect is that an individual is now able to bring a claim for direct discrimination not on the grounds of their protected characteristic but simply just because of a protected characteristic, whether it is theirs or someone else’s.
Discrimination on the grounds of perception will be an interesting area to observe going forward because the particular circumstances of the claim have the potential to be quite creative and thus more difficult for employers to anticipate. For example, discrimination on the grounds of perception could occur where an employer who rejects a job application from a white woman who he wrongly thinks is black, because the applicant has an African sounding name. Another example of where discrimination on the grounds of perception could occur is where an employer rejects a male applicant for a job on the basis that he wrongly thought that the applicant was gay because he came across as camp during the interview.
As with many parts of the Equality Act, only time will tell how the provisions will develop.
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Rita Mehta, solicitor, Thomas Eggar LLP
