As promised in Issue 33 of the Bottom Line Express, the Masterclass in this Issue takes a look at associative and perceptive discrimination under the Equality Act 2010.
The first point to note is that the act does not specifically mention or define associative or perceptive discrimination. Instead, it defines direct discrimination in a way that is wide enough to cover both of these types of claims:
“A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.”
The key concept is that the person bringing the claim does not need to have the protected characteristic. It is sufficient that the treatment is because of a protected characteristic. The protected characteristic can belong to another person or it can be a perceived characteristic which the employee does not actually have. An individual will also be able to bring a claim for harassment in those situations.
Associative discrimination means direct discrimination against someone because they are ‘associated’ with another person who possesses a protected characteristic. For example, refusing to employ someone because their partner is a Muslim, even though the prospective employee is not themselves a Muslim.
Currently, legislation expressly applies this to the protected characteristics of race, religion or belief and sexual orientation. The recent case of Coleman v Attridge Law also applied it to disability discrimination and, arguably, other protected characteristics.
From October 2010, the Equality Act will expressly extend this protection to the characteristics of age, disability, gender reassignment and sex. Only the characteristics of marriage, civil partnership, pregnancy and maternity will not be covered.
As a result, it will be possible for claims to be made on the grounds of a discrimination due to association with a disabled person, for example an employee being discriminated against or harassed because they are the parent of a disabled child or the partner of somebody undergoing gender reassignment.
Other areas where associative discrimination is likely to be raised include:
• redundancy selection criteria e.g. employees claiming that their absence history should be disregarded because it relates to time they have taken off to care for a disabled relative; and
• flexible working requests e.g. an employee who cares for an elderly parent has a flexible working request turned down but the employer grants all similar requests made by employees who care for children.
Case law will emerge before long addressing these kinds of issues. It is in respect of carers that the impact of this strand of discrimination will be felt by employees and employers. Every day, another six thousand people take on a caring responsibility for ill, frail or disabled family members, friends or partners.
Employers are, however, permitted to continue to offer childcare facilities to employees based on the age of the child, up to and including age 16, without being open to challenge from other employees.
Once again, it should also be noted that there is no requirement for any actual association between the claimant and a person with a protected characteristic. It is sufficient for the protected characteristic to be the reason for the treatment. For example, an employer asks a manager to interview only applicants under 30 for a position within its marketing team. When the manager refuses to do so, he is demoted. This could constitute direct discrimination.
Perceptive discrimination means direct discrimination against someone because they are thought to possess a particular protected characteristic. It applies even if the person does not actually possess that characteristic.
For example, where someone is verbally abused because he is perceived to be homosexual, even though he is actually heterosexual.
Currently, legislation expressly applies this to the protected characteristics of age, race, religion or belief and sexual orientation.
From October 2010, the Equality Act will expressly extend this protection to the characteristics of disability, gender reassignment and sex. Only the characteristics of marriage, civil partnership, pregnancy and maternity will not be covered.
Other examples of perceptive discrimination include:
• rejecting a job application submitted by a white person whom the employer wrongly assumes to be black because they have an African name
• subjecting an employee to religious abuse on the basis that he supports a particular sports team, even though he does not actually belong to the religion associated with that team.
What should employers do?
It is important to note that the act does not impose a duty to make “reasonable adjustments” for employees who have responsibilities as carers. However, employers should be careful to ensure that they take a consistent approach to flexible working applications and that they do not treat one group of carers (e.g. those caring for disabled relatives) less favourably than others when considering flexible working requests.
Employers should ensure employees are aware that discriminatory behaviour is not acceptable, no matter who it is directed at, and that discriminatory banter” will not be tolerated. Employers may wish to consider reviewing their equal opportunities and harassment policies to check that this is covered and providing updated equal opportunities training to employees.
The Masterclass article in the next Issue of the Bottom Line Express will consider changes to disability discrimination including the new provisions on pre-employment health questions.
For more information or advice on the Equality Act, call the Advice Service on 0844 892 2772