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.
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