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Perceived disability

This is where the discrimination is not based on an actual disability, as defined in the Equality Act. Rather the employer etc mistakenly perceives there to be a disability. Direct discrimination and harassment in relation to 'perceived disability' may be covered by the Equality Act. However, the position has not yet been confirmed by court decisions.

Note: this page covers the Equality Act 2010 position from 1st October 2010. See also pre-Equality Act position and Which Act applies: Equality Act or DDA?

What is perceived disability?

Perceived disability is where the person does not actually have the disability, but the discrimininator mistakenly thinks they do.

'Perceived' disability is not itself a legal term. The idea is that discrimination can be 'because of disability' (and thus direct discrimination) if the discriminator thinks the person has a disability, even he does not actually have a disability as defined. In the same way, harassment can be 'related to disability' even if the victim is not actually disabled.

The intention of the Government is that perceived disability should be covered by the Equality Act. However, the position has not yet been confirmed by court decisions.

At least in the case of harassment, it seems that protection can go beyond this - in the sense that there need be no 'actual' or 'perceived' disability at all. See further below Where there is no disability, actual or percieved.

Limited to 'direct discrimination' and harassment

Perceived disability is only relevant so far as a claim is for direct discrimination or harassment.

Other types of claim, such as 'discrimination arising from disability' and the duty to make reasonable adjustments, have different wording which means the claimant must actually have (or have had) the disability as defined in the Equality Act.

For direct discrimination and harassment, it may well become (or be) standard to claim 'perceived disability' as an alternative, in addition to arguing that one does actually a disability as legally defined.

Relevance to stammering: Perceived effect

Perceived disability may be relevant if a stammer does not actually have a substantial (i.e. more than minor or trivial) effect on normal day-to-day activities, so as not to meet the legal definition of disability.

What is likely in practice is that the person who stammers will be arguing that the stammer meets the legal definition of disability, but also saying (by way of backup argument) that in any event the claim falls within the legislation as a perceived disability even if the stammer does not actually meet the definition.

Perceived disability may need to meet the legal definition?

Does the employer need to have a perception that there is a long term impairment which has a substantial effect on normal day-to-day disabilities? Does the employer's perception need to be this 'sophisticated', this thought-out, in order for there to be discrimination because of perceived disability? If yes, this could be quite a tough test for a claimant to meet, at least for some disabilities.

How far is this really a problem, looking particularly at stammering? (I assume here that, as is likely, perceived disability is in principle covered by the Equality Act.)

Accordingly, even if the effects of an impairment do need to be perceived by the employer etc as substantial and long-term, it may not be difficult to show that a perceived stammer meets these conditions.

Harassment even if no 'perceived' disability

Note that, for harassment at least, there may be a claim even if there is no 'perceived' disability (so there need not be anything perceived to meet the legal conditions of being a disability. See below Where there is no disability, actual or perceived. However the harassment may need to 'relate to' an (invented) disability which meets the legal definition.

Relevance to stammering: Perceived 'mental' disability

As a person who stammers, it is not unusual to find people thinking that because of one's speech one has slower mental processes, or that one will have difficulty understanding what the other person says unless they speak r-e-a-l-l-y s-l-o-w-l-y.

Accordingly, if an employer disputes that the stammer itself is a disability, there may in any event be direct discrimination or harassment related to a perceived mental disability.

European background

It is very possible that under the European Framework Employment Directive direct discrimination and harassment based on perceived disability are illegal. The Coleman case focussed on discrimination based on association, but it can be strongly argued that the same wording of the Directive also covers perceived disability. This is on the basis that the discrimination or harassment is "on grounds of" or "related to" disability even if claimant does not actually have a disability (the argument that perceived disability falls within the Equality Act wording is very similar).

Cases before the UK tribunals

So far, cases have looked at the law as it stood before Equality Act 2010, and are inconclusive. They consider whether perceived disability falls within the European Framework Directive. If it does, the further question arises whether even before Equality Act 2010 (despite the wording of the preceeding DDA), tribunals must give effect to that European law. See Perceived disability - pre October 2010: Cases before the UK tribunals.

Where there is no disability, actual or perceived

At least in the case of harassment, there can be a claim without there being any disability, actual or perceived. The harassment just needs to be 'related' to disability.

From the Employment Code, para 7.10
A worker is subjected to homophobic banter and name calling, even though his colleagues know he is not gay. Because the form of the abuse relates to sexual orientation, this could amount to harassment related to sexual orientation.

A pupil who is extremely shy is teased by a teacher about not being confident enough to answer questions in class. The teacher mimics him in front of the class by speaking with a stammer. Although the teacher knows the pupil does not have a speech or language disability, this conduct could still amount to disability related harassment under the Act
Taken from para 8.14 of the 2011 consultation draft Codes of Practice on Schools, available on Equality Act consultations (link to EHRC). However, the relevant chapter (and thus the example) did not make it into the final version of the Schools Technical Guidance.

In the Equality Bill debates, the Government said the broad wording on harassment/direct discrimination "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." (col 254, Public Bill Cttee, 16th June 2009 (link to UK Paliament website))

This may mean that a person who stammers (or indeed who doesn't) who is teased in relation to stammering - e.g. mimicking a stammer or calling someone names related to stammering - can have a claim for harassment without showing their stammer meets the legal definition of disability. (In practice, the stammer will likely meet the legal defintion anyway).

The same could apply for direct discrimination, but it is more difficult to see how that would arise in practice.

Passage of the Equality Act 2010

The Equality Bill proposals in this area were originally announced by Harriet Harman on 3rd April 2009:

"The Equality Bill will ... prohibit direct discrimination and harassment based on association and perception in respect of race, sex, gender reassignment, disability, sexual orientation, religion or belief and age and in relation to both employment and areas beyond this, such as goods, facilities and services.

"This extension will implement the Coleman judgment in Great Britain and the extension to other protected characteristics is in keeping with the aims of the Equality Bill to simplify and strengthen the law." Full written statement by Harriet Harman (link to Hansard).

Extending the right beyond employment, e.g. to provision services, goes beyond the requirements of European law and the Coleman case.

Lack of more specific wording is because of intention to keep it wide

The Equality Act 2010 wording intended to cover discrimination by (association or) perception is actually in much more general terms - it talks of discrimination or harassment 'because of' or 'related to' disability. There were calls, from the Equality and Human Rights Commission and others, for the legislation to be clearer in expressly mentioning discrimination by association and perception. The Government rejected an amendment to this effect in the House of Commons Committee (col 251-256, Public Bill Cttee, 16th June 2009 (link to UK Parliament website)). In doing so, the Solicitor General gave examples of instances, going beyond association and perception, that the Government intended the wider wording to cover. See for example above Where there is no disability, actual or perceived.

Must 'perceived' disability be substantial and long-term?

Under the Equality Act wording, it is possible that the claimant must show he was perceived to meet the legal definition of disability, i.e. perceived to have an impairment with the required substantial and long-term effect. In the debates on the Equality Bill it was said that in the United States the Americans with Disabilities Act of 1990 (see US comparison below) specifically provides that a person is regarded as being perceived to be disabled if they are discriminated against based on that belief, whether or not the effects of the perceived disability meet the definition of disability under that Act. An amendment to achieve a similar effect was proposed for the Equality Act.

However, the Government opposed this. The Solicitor General said:

Amendment 166 would provide that a person perceived as having a disability would not have to meet the requirement that their perceived impairment must have "a substantial and long-term adverse effect" on their ability to carry out day-to-day activities in order to be protected by the Bill. However, somebody who had a disability would continue to have to prove that. It would be most inequitable for somebody who did not have a disability to have a lighter test to gain protection than somebody who did, and that is the logical fault in the proposal.'

(Col 195-197, Public Bill Cttee, 16th June 2009 (link to UK Parliament website)).

Also, an issue raised by the Employment Appeal Tribunal (EAT) in J v DLA Piper (June 2010), which considered the pre-Equality Act (DDA) position, is this problem of deciding whether the employer perceives the employee to have a disability which meets the DDA definition of disability. The EAT commented that the manager may simply not think whether the perceived impairment is likely to last more or less than twelve months, so as to be 'long-term' within the definition.

Conditions 'perceived' to be likely to recur

A Minister commented in the House of Lords debates that extending protection to perception will mean a person with a depressive condition who does not satisfy the Equality Act's definition of a disabled person will be protected if, for example, their employer discriminates against them because he considered mistakenly that the impairment is likely to recur (my emphasis). Col 1338 HL Hansard 2/3/10 (link to UK Parliament website).

United States comparison

Apparently the United States already has a 'perceived disability' concept in the Americans with Disabilities Act. For example: "Therefore, if your stuttering does not actually substantially limit your ability to speak, you still may be protected, if your employer discriminates against you because he or she believes your stuttering is a physical or mental impairment" (ADA article on stutteringtreatment.org blog). Also further US links.

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Last updated 22nd March, 2011