Discrimination by Perception (Association)

What is Discrimination by Perception (Association) at Work?

Perceptive discrimination (sometimes called discrimination by association) occurs when someone is treated unfairly because others believe they have a protected characteristic, even if they don’t. For example, an employer might wrongly assume that a job applicant is disabled or belongs to a certain religion, and treat them less favourably based on that assumption. Under the Equality Act 2010, perceptive discrimination is classified as direct discrimination, which means it is unlawful regardless of whether the individual actually has the characteristic they are believed to have.

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Examples of Discrimination by Perception

Perceptive discrimination can arise in various workplace situations. Here are some common examples:

Recruitment: An employer might reject a job applicant with an “African-sounding” name because they assume the candidate is of a particular race or religion. Even if the applicant does not belong to that race or religion, the decision to reject them based on this assumption is perceptive discrimination.‍
Promotion: An employee may be passed over for a promotion because the employer assumes they have a disability, perhaps due to them using hearing aids. Even if the employee does not have a disability, the less favourable treatment based on this assumption is illegal.‍
Workplace bullying: If a co-worker is bullied because others believe they are gay, this would also fall under perceptive discrimination, even if the individual is not gay.

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Legal Obligations for Employers

For UK employers, understanding and preventing perceptive discrimination is critical to staying compliant with the law. It’s important to note that this type of discrimination can occur unintentionally, often as a result of unconscious bias. However, the law makes no distinction between intentional and unintentional discrimination—both are unlawful under the Equality Act.

Employers must ensure they do not make decisions based on assumptions or stereotypes. By fostering a fair and inclusive workplace, businesses can avoid the legal risks associated with perceptive discrimination while creating a more positive environment for all employees.

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Protected Characteristics Covered by Perceptive Discrimination

Perceptive discrimination applies to several of the protected characteristics outlined in the Equality Act 2010. These characteristics are specific traits or attributes that the law safeguards against unfair treatment. Even if someone does not possess these traits, being treated unfairly because they are perceived to have them is unlawful. Here’s a breakdown of the applicable characteristics:

‍Age: Discrimination based on a perceived age, whether young or old, is covered under the Equality Act. For example, if an employer assumes an employee is too young to handle a senior role and denies them a promotion based on that assumption, it would constitute perceptive discrimination.
Disability: One of the more common grounds for perceptive discrimination. If an employee is treated less favourably because they are thought to have a disability, even if they do not, this is unlawful. For instance, assuming someone has a mental health condition due to certain behaviours and then demoting them because of that belief would be illegal.
Gender reassignment: If someone is perceived to be undergoing or has undergone gender reassignment and is discriminated against based on this belief, they are protected under the law. This applies even if the individual does not identify as transgender.
Race: Discrimination based on a perceived race is also unlawful. An example might be assuming someone is of a certain race due to their name or appearance and treating them less favourably, such as rejecting their job application.
Religion or belief: If an employer or colleague assumes someone follows a particular religion (for example, assuming someone is Muslim because they wear a headscarf) and then treats them differently because of this, it qualifies as perceptive discrimination.
Sex: Perceptive discrimination based on sex is another common form, for example, assuming a male employee is not suitable for a caregiving role because of his gender.
Sexual orientation: If an individual is treated unfairly because they are perceived to be gay, lesbian, or bisexual, this is covered under the Equality Act. This could include instances where an individual is bullied or denied opportunities based on assumptions about their sexual orientation.

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Exemptions: Characteristics Not Covered by Perceptive Discrimination

While most of the protected characteristics fall under perceptive discrimination, a few are exempt. These include:

Pregnancy and maternity: Perceptive discrimination does not apply to pregnancy and maternity. This means that someone cannot claim perceptive discrimination based on the belief that they are pregnant or on maternity leave. Claims in this area would need to fall under direct or indirect discrimination.
Marriage and civil partnership: Similarly, perceptive discrimination does not apply to marriage and civil partnership. For example, if an employer assumes someone is married or in a civil partnership and treats them differently, this would not be covered under perceptive discrimination laws.

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Legal Implications for Employers

Employers in the UK have a legal obligation to ensure that their workplace is free from all forms of discrimination, including perceptive discrimination. Failure to address this form of discrimination can have serious consequences, not just for the employees affected but also for the business itself. Here’s an overview of employer responsibilities and the potential consequences of non-compliance:

1. Prevent discriminatory behaviour

Employers must take proactive steps to ensure that no one in the workplace is treated unfairly due to incorrect assumptions about their protected characteristics. This includes during the recruitment process, promotions, daily interactions, and dismissal decisions.
Employers should review policies regularly to ensure they reflect best practices for diversity and inclusion. Clear anti-discrimination policies, such as a Dignity at Work policy, should be established and communicated across the business.

2. Provide Equality and diversity training

All employees, especially those in managerial positions or involved in hiring, should undergo regular equality and diversity training. This helps them understand their responsibilities and how to avoid discriminatory behaviours, including unconscious bias.
Training should include specific guidance on perceptive discrimination, helping managers recognise when this type of unfair treatment might occur, even unintentionally.

3. Create clear grievance procedures

Employers must have a clear and accessible grievance procedure in place for employees to raise complaints if they feel they have been treated unfairly due to perceived characteristics. These procedures should encourage staff to come forward without fear of victimisation or retaliation.
Address complaints swiftly and thoroughly, conducting impartial investigations to determine if perceptive discrimination has taken place.

4. Make reasonable adjustments

For employees perceived to have a disability, employers must ensure that no unfavourable treatment occurs based on assumptions. In addition, reasonable adjustments should be offered, if applicable, even in cases where a disability is perceived but not actual.

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Consequences of Failing to Address Perceptive Discrimination

1. Employment Tribunal Claims

If an employee experiences perceptive discrimination and the issue is not resolved internally, they may take the matter to an employment tribunal. The tribunal can award compensation to the affected individual for lost earnings, emotional distress, and any other damages.
There is no cap on compensation for discrimination claims, meaning that employers face potentially unlimited financial liability.

2. Reputational Damage

Being found liable for discrimination in a tribunal can significantly damage a company’s reputation. This can affect employee morale, customer trust, and even future recruitment, making it harder to attract top talent.
In severe cases, discrimination claims can attract media attention, further harming the business’s public image .

3. Vicarious Liability

Employers can also be held vicariously liable for the actions of their employees if those actions are discriminatory and occur during employment. This applies even if the employer was unaware of the discrimination.
Employers need to demonstrate that they took reasonable steps to prevent discrimination in order to defend themselves against such claims. This highlights the importance of having proper policies and training in place.

4. Negative Workplace Culture

If perceptive discrimination is not addressed, it can contribute to a toxic workplace environment, lowering employee morale, increasing turnover, and reducing productivity. Employees who feel unsupported or unfairly treated are less likely

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Conclusion

Perceptive discrimination may not be as widely recognised as other forms of bias, but it is just as important for UK employers to address. Under the Equality Act 2010, treating someone unfairly based on assumptions about their protected characteristics—whether it’s age, disability, race, or sexual orientation—is unlawful.

Employers are responsible for preventing this kind of discrimination by implementing robust anti-discrimination policies, providing equality and diversity training, and ensuring a clear and accessible grievance process is in place. By fostering an inclusive workplace where assumptions and biases are challenged, businesses not only stay compliant with the law but also cultivate a positive and productive environment for all employees.

Failing to address perceptive discrimination can lead to serious consequences, including costly tribunal claims, vicarious liability, and reputational damage. But with proactive measures, such as regular policy reviews and awareness training, employers can protect their business and ensure fair treatment for everyone.

Ultimately, taking steps to prevent perceptive discrimination is not just about avoiding legal risks—it’s about creating a workplace where everyone, regardless of perceived identity, feels valued and respected.