In the UK, it is unlawful to treat someone less favourably than someone else at work because of certain protected characteristics, such as their age, sex, disability, race or religion. This includes treating someone unfairly because of a perception that they possess a particular characteristic.
The following guide for employers outlines the law relating to perceptive discrimination, and how this affords job applicants and workers protection from unfair treatment. We also examine the employer’s duties relating to discrimination by perception and the common areas of risk around this, together with the ways in which you can reduce the risk of discriminatory conduct in your workplace and how any grievances should be handled.
What is perceptive discrimination?
Under the Equality Act 2010, each and every employer is under a statutory duty not to discriminate against anyone at work — whether this be a job applicant or an existing member of staff — because they possess a protected characteristic. These characteristics can include a person’s age, disability, gender reassignment, marriage or civil partnership, pregnancy or maternity, race, religion or belief, sex or sexual orientation.
As an employer, you should not discriminate against job applicants or workers, either because they possess one of these protected characteristics or you mistakenly perceive that someone is a member of a relevant protected group. The latter is commonly known as perceptive discrimination. This is the legal term used when an individual is treated unfairly because it is believed that they possess a certain characteristic, as set out under the 2010 Act, whether or not it’s true. Perceptive discrimination is a form of direct discrimination, where the person doesn’t need to have a particular characteristic for them to be directly discriminated against. The discrimination is based on perception, rather than reality, but it’s unlawful nonetheless.
A job applicant or worker can also be directly discriminated against in circumstances where they do not personally possess a protected characteristic, but they are associated with another person who falls into a protected category. This is known as associative discrimination and typically arises where a person is treated less favourably by their employer because a partner, parent, child or friend possesses a protected characteristic under the Act.
How does the law protect employees against perceptive discrimination?
Under the provisions of the Equality Act 2010, job applicants and workers are legally protected from direct discrimination, including perceptive discrimination. Under section 13(1) of the Act, an employer will be treated as directly discriminating against an applicant or worker if they treat that person less favourably than they treat or would treat others at work “because of a protected characteristic”. This will be classed as unlawful discrimination for which the complainant can bring a claim for compensation in the employment tribunal.
Perceptive discrimination is not explicitly defined within the 2010 Act, but is implicit within the wide statutory definition of direct discrimination, where the phrase “because of a protected characteristic” clearly prohibits discrimination by perception. This means that, in any claim for unlawful discrimination, the individual alleging unfavourable treatment will not need to show they actually possess the protected characteristic for which they allege to have been treated unfairly. The employment tribunal will only be concerned with whether any discrimination is by reason of that particular characteristic or perception, where the focus is on the connection between the perceived characteristic and the treatment.
There are various types of unfavourable treatment that may be construed as direct discrimination by perception, including treating someone unfairly in relation to their employment terms and conditions, their pay and benefits, any promotion and transfer opportunities, training and recruitment, as well as dismissal and redundancy.
If an employee is dismissed or made redundant because they are thought to possess a protected characteristic, this will amount to both unlawful discrimination and automatically unfair dismissal. If someone is harassed or victimised because of a perceived protected characteristic, they will also be afforded protection under the Act. Harassment is where someone is subjected to unwanted conduct linked to a protected characteristic that either violates their dignity or creates an offensive environment. Victimisation is where someone is subjected to a detriment because they’ve complained about discrimination or harassment.
Employer’s duties
As with any form of direct discrimination, an employer can be held accountable under the 2010 Act for its own perceptive discriminatory conduct. However, an employer can also be held vicariously liable for the discriminatory conduct of other members of staff, including HR and management. This is because, under the provisions of the Act, anything done by another person in the course of someone’s employment must be treated as also done by the employer.
This means that employers are under a duty to ensure that all reasonable steps are taken to prevent any discriminatory conduct from arising at work — or to take steps to rectify any unfavourable treatment that comes to light — either during the recruitment process or for the duration of an individual’s employment and even beyond, such as the provision of a reference.
Discrimination risks for employers
Perceptive discrimination can occur in relation to various different types of unfavourable treatment at work, although one of the most common areas of risk is during the recruitment process. This is where it can be common for those responsible for making hiring decisions to make mistaken assumptions about a candidate, for example, rejecting a job application from a white applicant whom is mistakenly thought to be black because they have an African-sounding name. This is likely to be viewed as less favourable treatment because of race. Discrimination by perception could also arise where a candidate is deliberately not put through to second interview because they are perceived at first interview to be transgender. This could amount to discrimination based on gender reassignment.
Equally, incidents of perceptive discrimination can happen during the course of a person’s employment where, for example, a heterosexual worker is mistakenly perceived to be homosexual and is denied promotion for a public-facing role because of this. This would potentially be classed as direct discrimination by perception based on sexual orientation.
The issue of perceptive discrimination under the 2010 Act was dealt with by the Court of Appeal for the first time in the case of Chief Constable of Norfolk v Coffey [2019] EWCA Civ 1061. Here, the court upheld the tribunals’ ruling that the refusal of a transfer because of a perception that problems with the claimant’s hearing could develop into a disability amounted to perceived direct discrimination. In this case, rather than following a fair process to assess the claimant’s capabilities, a mistaken assumption was made about her ability to fulfil the responsibilities of the transferred role — for which she received compensation in excess of £26,000. Even though cases of perceptive discrimination are rare, this decision serves as a stark reminder to employers as to the costly consequences of discrimination.
Discrimination in the workplace, by perception or otherwise, can not only give rise to legal proceedings, it can also seriously impact the running of your business. If employees feel they’re not being treated fairly at work, this can easily lead to conflict, tainting working relationships and damaging your employer brand. It can also lead to high staff turnover rates or, at the very least, reduced morale and motivation amongst your workforce.
Managing legal risk of discrimination by perception
Discrimination by perception potentially represents a significant area of risk for employers, especially since there are few case law examples of how different types of unfair treatment will be treated by a tribunal in the context of each of the protected characteristics.
Admittedly, from the claimant’s perspective, it can be difficult to establish facts sufficient to persuade the tribunal of a prima facie case, ie; that any unfavourable treatment was as a direct result of a perceived protected characteristic. Still, employers should be cautious of falling back on any evidential difficulties that a claimant may face. Even though a claim for perceptive discrimination requires the claimant to establish facts from which the tribunal can conclude, in the absence of any adequate explanation, that an unlawful act of discrimination had been committed, the burden of proof then shifts to the employer to prove a non-discriminatory explanation (see Royal Mail Group Ltd v Efobi [2021] UKSC 33, the leading authority on the operation of the burden of proof under the 2010 Act).
This means that employers must take a proactive approach to prevent discrimination within the workplace, including discrimination by perception. As such, it’s crucial for employers to understand the different types of discrimination and how complaints of perceptive discrimination can arise. It’s also essential that those responsible for making hiring, firing and other management decisions fully understand this concept and are trained in this area of risk.
Employers should put in place a written workplace policy on discrimination, harassment and victimisation, typically described as a ‘Dignity at Work’ policy. Any workplace policy must be written in clear and comprehensible terms, and made easily accessible to all members of staff. Training may also be necessary to make staff fully aware of the provisions of the policy, including the implications for them and the business of any unlawful conduct at work.
Equally, employers must ensure that adequate grievance procedures are in place to deal with any staff complaints of unfair treatment by reason of a protected characteristic, including where it is perceived that someone is a member of a relevant protected group.
How should a perceptive discrimination grievance be handled?
Although it is not generally straight forward for a claimant to succeed in a claim for direct discrimination —especially perceptive discrimination, where sufficient facts need to be established that they were treated less favourably because of a characteristic they don’t even possess — you should still explore exactly what has happened and establish any merit in the allegations made. As with any other grievance, this means you should investigate the matter fully, fairly and promptly. This should also be done without undermining the impact of any unfair treatment on the complainant, simply because they do not actually possess the characteristic in question.
Where there is some merit to the allegations of perceptive discrimination made, even if inconclusive, steps should be taken to obviate or reduce the adverse effect on the complainant of any unfavourable treatment. This is because, in these circumstances, the burden is likely to fall to you to provide a non-discriminatory explanation in the context of any tribunal claim. In any event, the matter should still be handled with care to help restore a positive working relationship with the complainant, where at all possible, and to protect your employer brand.
By having in place a fair and easily accessible grievance procedure, and by dealing with any allegations swiftly and sensitively, this will provide you with the best opportunity to resolve the matter without recourse to legal proceedings. If the matter cannot be resolved internally, you should seek expert legal advice from an employment law specialist as soon as possible.
Perceptive discrimination FAQs
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Legal disclaimer
The matters contained in this article are intended to be for general information purposes only. This article does not constitute legal advice, nor is it a complete or authoritative statement of the law, and should not be treated as such. Whilst every effort is made to ensure that the information is correct, no warranty, express or implied, is given as to its accuracy and no liability is accepted for any error or omission. Before acting on any of the information contained herein, expert legal advice should be sought.
Author
Gill Laing is a qualified Legal Researcher & Analyst with niche specialisms in Law, Tax, Human Resources, Immigration & Employment Law.
Gill is a Multiple Business Owner and the Managing Director of Prof Services - a Marketing & Content Agency for the Professional Services Sector.
