Perceptive Discrimination - An HR Guide

Did you know that an employee doesn’t have to have a protected characteristic to claim discrimination?

While most employers will understand discrimination (including its risks and issues), there are a variety of forms for discrimination. Each one poses its own risks and challenges in a workplace environment.

In this article, we’ll explore what perceptive discrimination is, whether it’s considered unlawful, and how employers can eliminate it from your business.

If you need immediate advice on equality & discrimination in your organisation, speak to one of our HR advisors today on 01455 858 132.

What is perceptive discrimination?

Perceptive discrimination is when a staff member receives less favourable treatment due to a perceived protected characteristic. It’s also known by the legal term, ‘discrimination by perception’. The protected characteristics can include disability, race, religion or belief, and more.

What differentiates perceptive discrimination from other types of direct discrimination is whether the person has a protected characteristic. If an employer rejects a candidate because of a protected characteristic they possess, then that is direct discrimination. If you just believe they have that protected characteristic, even though they don’t, then it is perceptive discrimination.

Remember, what amounts to discrimination often trickles down to individual circumstances. An employee may feel they’ve been subject to less favourable treatment, where someone else may not. If an issue is raised, take it seriously and follow a fair process.

 

 

How discrimination by perception works

So how does perceptive discrimination work in practice?

Firstly, the person discriminated against does not have to have the protected characteristic the employer believes they have, to claim discrimination. What matters is that less favourable treatment occurred because of the protected characteristic. The unfair treatment itself could include:

• Refusal to hire someone
• Bullying behaviour
• Failing to consider someone for promotion or career progression

Often, the discriminatory behaviour occurs without evidence, and is often the result of unconscious bias. While this behaviour may not be intentional, the law still applies. One of your responsibilities as an employer is to ensure discriminatory behaviours doesn’t occur. You should provide assistance to those who possess a protected characteristic where possible.

There are some where legal protection doesn’t apply as outlined by the Equality Act 2010. 

Exceptions

There are two protected characteristics which aren’t protected by the perceptive discrimination rule. These are:

1. Pregnancy & maternity
2. Marriage & civil partnership

Perceptive discrimination is always direct discrimination.

For a staff member to claim discrimination based on the relevant protected group of marriage & civil partnership, it cannot be discrimination by perception. Instead, it must be in the form of any other direct discrimination or indirect discrimination. This is outlined under section 18 of the Equality Act 2010. This specifies that it is unlawful for an employer to discriminate by treating a woman unfavourably because:

“Of her pregnancy during the protected period;

of an illness she has suffered as a result of her pregnancy during the protected period;

she is on compulsory maternity leave;

she is exercising or seeking to exercise, or has exercised or sought to exercise, the right to ordinary or additional maternity leave.”

If you’re concerned your contracts or policies may be discriminatory, speak to one of our expert documentation team today on 01455 858 132.

 

 

Effects of perceptive discrimination

Perceived direct discrimination can be just as harmful as other forms of discrimination. Not only does it create a bad working environment for your employees, it also poses a huge risk to business success too. Restricting staff from progression or refusing to hire the right people due to perceived traits is harmful and will hinder your business. Your staff retention may suffer, as could company morale. Plus, if an employee feels they’ve been treated unfairly, they could raise a costly tribunal claim against you that will damage your finances and reputation.

To make sure perceptive discrimination doesn’t occur in your workplace, familiarise yourself with some key examples…

Examples of perceptive discrimination

The nine relevant protected characteristics are:

1. Age
2. Disability
3. Gender reassignment
4. Marriage and civil partnership
5. Pregnancy and maternity
6. Race
7. Religion or belief
8. Sex
9. Sexual orientation

However, some of these protected groups are more likely than others to be victim to perceived discrimination. Age, gender reassignment, race, religion or belief, sex, and sexual orientation are the most common. Although, in 2019, the UK saw a landmark ruling on a disability discrimination case involving perception. We’ll look at that case in more detail later, first let’s take a look at some prime examples of when perceptive discrimination can occur…

Recruitment

Recruitment can be a hotbed for discrimination. For example, an employer may not hire a candidate because of the name listed on their job application. A similar situation can occur if an employer believes the candidate is a certain sex based on their CV, even if this is not the case.

Workplace bullying

Perceived direct discrimination can occur between employees, too. A staff member might be subject to bullying because other staff believie he is gay. Regardless of the employee’s sexual orientation, he could claim discrimination due to perception.

Protection against harassment and bullying is one of your main responsibilities as an employer. So, even though you may not be responsible for the behaviour, you could be held liable

Process

A recent landmark case found that perception of disability lead to a failure to follow process which resulted in direct discrimination. See our analysis of the case law below to find out how issues caused by an individual’s disability amounted to discrimination…

 

 

Chief Constable of Norfolk v Coffey

In this case from 2019, the court of appeal upheld a claim that direct discrimination occurred because of perceived disability. It was the first time the issue was considered at appellate level.

The claimant in this case was a serving police officer who requested a transfer to a different constabulary. A recent medical examination had found she was suffering from some hearing loss due to tinnitus. This medical issue meant she fell short of National Recruitment Standards for hearing loss for the police. However, the guidance around these standards stated that this wasn’t necessarily binding. Each candidate should be assessed individually. This means the individual’s ability and health condition are equally as important.

When the employee had initially joined the Wiltshire Constabulary, the individual’s ability was assessed via a practical functionality test. As a result, she’d already worked successfully as a police constable. A similar assessment was recommended for the transfer. However, the Norfolk Constabulary refused to conduct the test and turned down the transfer application. This was despite the fact that there was medical evidence that her hearing levels were stable.

The employment tribunal upheld the employee’s claim. The case was taken to the employment appeal tribunal who also upheld the claim. Finally, the court of appeal saw the case. The court of appeal also held that the claimant was treated less favourably because of her perceived disability. Therefore, she was directly discriminated against by perception.

In most cases of perceived discrimination the individual doesn’t possess the characteristic they are believed to have. However, in this case, the employer assumed that the individual’s hearing loss would require restrictive duties and reasonable adjustments. This wasn’t the case: the assumption was stereotypical and therefore discriminatory.

 

 

How to prevent perceptive discrimination

The Chief Constable of Norfolk v Coffey court case demonstrates how policies and processes can prevent discrimination.

Having policies and documentation in place is an important first step. Employers should outline a zero-tolerance approach towards discrimination, bullying, and harassment. These types of behaviours should never be allowed in the workplace, regardless of the individual’s relevant protected characteristic and personal circumstances.

That’s why, when employers put policies in place, they must actively communicate and enforce them. Make sure your entire workforce is aware of the penalty if they display this type of behaviour.

Ensure your managers are sufficiently trained to deal with cases of discrimination when they occur. This includes diversity and inclusion training in recruitment practices. Dealing with conscious and unconscious bias will help keep your hiring free of discrimination.

Having a diverse workforce will also help reduce the likelihood of discrimination—provide equal opportunities for all. When discriminatory conduct does occur, make sure you follow a fair process. Where there is a disability or medical issue, make sure you consider all possible reasonable adjustments you could make.

Expert support on equality & discrimination

Discrimination due to perception can be just as harmful as any other form of discrimination as outlined by the Equality Act 2010.

Make sure your workplace has a zero-tolerance approach to this issue, or you risk costly claims and a demoralised workforce.

Speak to an expert HR advisor for support with this today on 01455 858 132.