Can a person bring a disability discrimination claim based on an employer’s perception that the Claimant is disabled or suffers from a particular type of disability when in fact the Claimant does not? Fatim Kurji considers the recent case law on this topic and the possible changes brought about by the new Equality Act.

That those suffering from a disability should not be discriminated against in the workplace is now a long established and seemingly obvious principle. When considering the issue of whether that same protection should be afforded to somebody who was discriminated against not because they were disabled, but because they were associated with somebody else who was disabled, the European Court of Justice ruled that they were entitled to such protection (Coleman v Attridge Law ECJ C-303/06). But what happens when an employer mistakenly believes that somebody has a disability, and discriminates on the basis of that belief? Two cases and a change in the law grapple with this complex issue.

J v DLA Piper [2010] IRLR 936 concerned the withdrawal of a job offer to the Claimant on the basis that she informed her prospective employer that she had previously suffered from depression. At first instance, her claim was dismissed on the basis that she was not suffering from a disability. At the EAT the Claimant argued, inter alia, that whether or not she was in fact disabled was not relevant; what mattered was that the employer perceived her to be disabled, and discriminated against her on that basis. She argued that her case was analogous to Coleman and that the DDA should be given a sufficiently wide interpretation so as to allow her claim to proceed. The EAT disagreed (although the case was ultimately remitted on other grounds). The language of the DDA required there to be an actual disability and in this case there was none; such a leap in the law could not be made without a reference to the ECJ. 

The matter had a second consideration in the EAT in the case of Aitken v Commissioner of Police of the Metropolis (UK EAT/0226/09). Here, the Claimant, who suffered from a compulsive obsessive disorder (which caused him to be aggressive on occasion, but not necessarily dangerous), was considered by his employer to have a dangerous mental illness because of his aggression. On the basis of that belief the employer retired the Claimant. The Claimant argued that less favourable treatment on the ground or by reason of a fear, belief, perception or assumption that the worker has a type of mental illness or impairment that, in the event, he does not have, was prohibited post Coleman.

This was rejected by the EAT who endorsed the decision in HM Prison Service v Johnson [2007] IRLR 951 that:

‘… for the purposes of liability under the 1995 Act the disability to which the reason for the treatment complained of relates must be a disability from which the claimant is in fact suffering, so that in principle a reason for action relating to (believed) disability A is not caught if the employee is in fact suffering only from (different) disability B.’

Public Bill Committee 16th June 2009 

It found that Johnson was not ‘trumped’ by Coleman and that conduct of which complaint is made under DDA must be for a reason relating to or on grounds of a disabled person’s actual disability.

It would appear that the shortcomings of the Act have been recognised by Parliament through the new Equality Act. The new definition of discrimination – which uses the language of ‘because of’ or ‘related to’ a disability is intended to cover both association (following Coleman) and perception. Given the EAT’s judgments in J v DLA Piper and Aitken v Commissioner of Police of the Metropolis it is perhaps surprising that the former Solicitor General declined the opportunity to expressly use the words ‘association’ and ‘perceived’. She was confident, however, that the language is sufficiently inclusive, stating:

“…The ‘because of’ turn of phrase in clause 13 is broad enough and is intended to be broad enough to cover much more than just cases in which the less favourable treatment is due to the victim’s association with someone who has the characteristic or because the victim is wrongly thought to have that characteristic. The formulation is intended to and does cover cases, for instance, of less favourable treatment because of a refusal to comply with instructions to discriminate. It is also intended and does cover a case in which someone is treated as if they had a protected characteristic that they neither have nor are perceived to have at the time.

‘Direct discrimination’ has a number of forms – a lot of different forms. Even after the Bill, what the definition covers will continue to evolve through the case law. That is really the point. We do not want, by specifying particular kinds of direct discrimination, to imply that we are excluding kinds of discrimination that might come about in a situation that we have simply not foreseen when setting out the clause. So, we favour what we see as a broad formulation.” 

The Equality Act 2010 seeks to harmonise the definition of discrimination as it applies to both association and perception and it is now wide enough so that it is unlawful to treat an employee less favourably because of a protected characteristic, perceived or actual. It would now appear that a reference to the ECJ is no longer required.

By Fatim Kurji