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Disability Discrimination: “Perception versus Reality” by Nicholas Siddall

Nicholas Siddall analyses the decision of the EAT in Peninsula v Baker [2017] UKEAT/0241/16 and the arguably anomalous position that this creates as regards disability in the context of equality law. 

Associative Discrimination

In the days before the coming into force of the Equality Act 2010 (“EA”) the progression to a concept of outlawing discrimination where the alleged victim might not themselves hold the protected characteristic was an incremental one.

The hare was initially set running by Coleman v Attridge Law [2010] ICR 242 where the employee’s connection with her disabled child was held to be sufficient such that she was able to advance a claim for discrimination against her by her employer on the basis of her child’s disability. Thus was born the concept of so called associative discrimination.  The EAT expressed the same as follows (paragraph 16)

16. I appreciate that my formulation does not use the language of “association”. Although the phrase “associative discrimination” is a convenient shorthand, on my reading of the decision of the Court of Justice the concept of association is not central to its reasoning. What matters is that the putative victim has suffered adverse treatment on a proscribed “ground”, namely disability, and the fact that the disability is not his own is not of the essence: see para 50 of the judgment … In practice it may be uncommon for an employee to be discriminated against on the ground of the disability of anyone with whom he is not in some sense “associated”, indeed closely associated, but the fact of such association is not necessary to the unlawfulness; and I should prefer to avoid language which encourages tribunals to become bogged down in discussion of what does or does not amount to an “association”, when that should not be the focus of the inquiry.”

An example of that approach is EAD Solicitors v Abrahams [2015] IRLR 978 where a company succeed in a claim that it was treated less favourably by reason of the age of the person whose services it provided.

The concept of associative discrimination is now enshrined in the EA and applies to all protected characteristics. Indeed as detailed above the same sprung from a case involving disability. The concept is wide indeed but has been held not to apply to the duty to make reasonable adjustments on the basis of the particularly individual nature of the duty thereby created (see Hainsworth v MOD [2014] EWCA Civ 763).

The law has also been interpreted to allow an associative indirect discrimination claim and as arguably permitting a claim of associative victimisation (see: Thompson v London Bus Co [2016] IRLR 9 HHJ Richardson – although the possibility of such a claim was conceded and the appeal dealt principally with the question of the closeness required in order for any association to be made out).

Plainly the effect of the above line of reasoning is that if a person suffers discrimination as a result of a protected characteristic then it is unimportant whether they themselves hold that characteristic. The test is simply one of factual causation and there is no requirement of any particular closeness of connection in that regard (Thompson). Of course that analysis must be recognised as assuming the existence of the protected characteristic as regards someone as a matter of fact

Perception Discrimination

By analogy with the above logic the concept of perception discrimination was born from the decision in English v Thomas Sanderson [2009] ICR 543. There the employee, whom was known to be heterosexual, was ridiculed as to his perceived homosexuality (based on the facts that he had attended public school and lived in Brighton) and it was found that he was able to advance a claim of harassment on that basis.

The Government’s view in enacting the EA was that its wording is sufficiently wide so as to cover perception discrimination on the basis of all protected characteristics. This is considered equally to apply to claims of harassment. Indeed there is no requirement that the Claimant hold a particular protected characteristic at all if they are offended by abusive language targeted at a particular protected characteristic. That analysis is supported by the wording of the EHRC Guidance and Noble v Sidhil Ltd & Anor [2016] UKEAT 0375/14 (Lady Stacey).

The J “wrinkle”

In cases of e.g. race or sexuality there are no component elements of a protected characteristic. Very often the perception will be on a binary basis i.e. that one is black or white, straight or gay etc. The question is one of fact and not of law. That then raises the question of to what extent is that analysis transportable to the statutory definition of disability? Someone may be perceived to have an impairment but such a view does not necessarily support a perception that they are disabled in law.

In J v DLA Piper [2010] IRLR 936 Underhill J -prior to the enactment of the EA- expressed concerns as to the manner in which perception discrimination would operate in the context of a perceived disability. It is plain that the EAT’s comments were obiter and made in the context where the issue had not been argued at first instance. However Underhill J’s points can be summarised as follows (paragraphs 60-4 of the judgment)

• Disability is a specific concept which needs to be proven in any particular case;
• What the employer perceives may be difficult to assess against the statutory test of disability and to determine if that which is perceived is in fact a disability or not;
• For example if a manager perceives an employee to be depressed he may not address his mind at all to the question whether the same has lasted (or shall last) 12 months.

Underhill J concluded by stating

“In such a case, on what basis can he be said to be discriminating “on the ground of” the employee’s – perceived – disability? We do not say that the question is unanswerable, but we do say that it is not so clear that we could proceed without a reference.”

That reasoning was also followed obiter by Slade J in Aitken v Commissioner of the Police for the Metropolis [2011] 1 CMLR 58. (The Court of Appeal of appeal in Aitken did not address the same further [2012] ICR 78)

Disability: The Excluded Protect Characteristic?

The expressed intention of the Government in enacting the EA was that perception discrimination of all forms was prohibited. The question is whether that is the case as regards disability? This issue was touched upon in the recent decision of Laing J in Baker which may have the effect of placing perception discrimination on the grounds of disability into a separate category from other protected characteristics.

The Facts of Baker

The appeal in Baker was wide-ranging and repays study on the concepts of victimisation and accessorial liability under the EA which are outside the scope of this article. For present purposes the relevant facts are as follows:

1. The Claimant asserted that he was a disabled person by reason of dyslexia but that fact had not been proven and the Claimant did not advance his case on the basis that he was in fact disabled;
2. The matter was apparently not advanced on the basis of perception discrimination and no findings were made in that regard;
3. The Claimant was surveilled by the Respondent on the basis that it considered that he was working on his own account;
4. The Claimant contended that this surveillance was harassing of him by reason of his asserted disability and thus unlawful;
5. The Claimant succeeded in this contention before the Employment Tribunal.

The Arguments on Appeal

The Respondent contended that the Employment Tribunal’s finding of harassment was flawed relying on J. It contended that disability is a question to be determined in every case by the application of the factors set out in s6 EA and the schedules thereto.

The Respondent argued that the reasoning in J  was correct and that an asserted -and unproven- disability was even less a candidate for protection than was a perceived disability.

It also argued:

1. The aims of the Directive are furthered by the associative discrimination recognised in Coleman. Those aims would be impeded by any recognition of claims based on asserted disability.
2. Claims based on an asserted protected characteristic will almost always overlap with victimisation claims.  Section 27, with its exception for false claims made in bad faith, is the natural home for claims based on the assertion, rather than the possession, or attribution (or perhaps perception), of a protected characteristic.  An assertion which is made in good faith, but which is shown later to be unfounded, is protected by section 27.  Otherwise a person who claims a disability falsely and in bad faith could make a harassment claim, but would not be able to make a victimisation claim.
3. To recognise such a claim would significantly increase the scope of the tort of harassment.

The Decision in Baker

It is to be remembered that the reasoning in Baker addressed (and rejected) a harassment claim based on asserted -but unproven- disability discrimination and goes no further than that. However it appears that the effect of the analysis is to render perception discrimination claims of all kinds on the basis of disability problematic notwithstanding the Government’s stated intention as regards the wording of the EA. Laing J said this

56. Where the protected characteristic is disability, I agree with the reasoning of Underhill P (as he then was) in J v DLA Piper that a conclusion that unwanted conduct related to a perceived disability can amount to discrimination is       problematic because of the definition in section 6 of the 2010 Act. I should say that I am not persuaded that his reasoning (or, come to that, the reasoning of Lawrence Collins LJ in English in the passage the Respondent relied       on) hinges to any extent on the old statutory language.  A conclusion that unwanted conduct related to a disability which is claimed by the Claimant but not accepted by the Respondent is even more problematic, in my judgment. 
57. I also accept the Respondent’s submission that the tort of victimisation is best adapted to providing protection for a person who alleges (whether falsely or not) that he possesses a protected characteristic and claims that he has       suffered a detriment as a result, and for deterring people from imposing detriments on others who make such allegations. The drafting of section 27 shows that Parliament has considered the extent to which those who make       allegations should be protected by a statutory tort, and has drawn the line between those who make false allegations and those who make false allegations in bad faith.  If the Claimant’s argument is right, a person who alleges,       falsely, and in bad faith, that he has a protected characteristic, can nonetheless make a harassment claim. I do not accept that that can have been Parliament’s intention.
58. It follows that the ET erred in law in deciding that the Claimant could make a claim of harassment based on a disability which he claimed but had not proved.

The Effect of Baker

It appears that if the decision of Laing J were followed by an Employment Tribunal (or viewed as binding) on the issue of perception discrimination that the protected characteristic of disability is treated differently from other protected characteristics as regards the scope of protection under the EA.

On the one hand it might be said that this flows from the different nature of the protected characteristic of disability and the fact that the same is an objective question to be answered by reference to s6 EA in each case.

However there are a number of potentially anomalous issues and uncertainties produced by that analysis:

1. It creates an exception -not obviously supported by the wording of the statutory concepts of discrimination/harassment- for disability claims as distinct from other protected characteristics;
2. Is the effect of the same that, were the facts of Coleman to be repeated, that the disability of the employee’s child would need to be proven if disputed?
3. Is the effect of the reasoning to preclude perception discrimination claims in disability cases generally or is the limitation more nuanced and, if so, how?
4. If the approach is more nuanced it may create an arguable tension between different types of disability. For example the Equality Act 2010 (Disability) Regulations 2010 state that certain conditions are to be treated as a disability. Thus what would be the position if the employee were perceived by the employer to have say HIV (which is treated as a disability at the point of diagnosis)? May that person bring such a claim where a person suffering from, say, perceived depression could not?
5. What is the position if an employer received a medical report which stated that the employee is likely to be disabled and discriminated on that basis? Is that sufficient to amount to a perception of disability or are Baker and J to be understood as precluding a claim on that basis. Therefore could such conduct be lawful if disability eventually were not proven as a fact?
6. It seems odd that harassment of a person on the basis of characteristic that they are known not to hold can be unlawful but it is not unlawful to harass on the basis of a characteristic that they may well hold but which is not proven.

Conclusion

It is important to recognise that the ratio of Baker is limited to asserted but unproven disability. However the essential reasoning would appear to mean that in cases of discrimination advanced on the basis of perceived disability that the Claimant may face a series of additional hurdles and indeed the claim may be simply unsustainable.

It is likely only to be a matter of time before a further appellate decision grapples with this issue and some clarity in this area would be most welcome. In the interim it is suggested that Claimants are likely to seek to utilise the victimisation provisions in a manner similar to that discussed in Baker (cited above) so as to allow a potential claim.

Nicholas Siddall regularly accepts instructions in claims involving complicated issues of harassment.