An employment tribunal recently gave guidance on how to approach the novel issue of perceived disability discrimination.

In the case of Estlin -v- Central Manchester University Hospitals NHS Foundation Trust, in which Hill Dickinson successfully represented the respondent Trust, the tribunal addressed the question of what the employer must perceive for an employee to gain the protection of the Equality Act 2010 in the context of a perceived disability discrimination claim.

Dr Estlin was employed by the Trust as a consultant paediatric oncologist. In 2011, his behaviour was reported by various colleagues as being erratic and unusual and had resulted in complaints being made by colleagues and patients. The Trust excluded Dr Estlin from his duties pending an investigation. Dr Estlin claimed that various managers at the Trust had perceived that he was suffering from a mental disability and, in excluding him (amongst other acts), had subjected him to less favourable treatment. He brought claims against the Trust for constructive unfair dismissal, public interest disclosure detriments and perceived disability discrimination.

The law - perceived disability discrimination

According to section 13 of the Equality Act 2010 (the Act), A directly discriminates against B if he treats him less favourably ‘because of a protected characteristic’. This wording is wide enough to include discrimination not only on the grounds that B actually has the protected characteristic, but also is perceived to have it. An example of perception discrimination is given in the Equality and Human Rights Commission Employment Statutory Code of Practice, where a white job applicant is unsuccessful because she has an African sounding name. The perception is wrong and the claimant does not have the protected characteristic, but is perceived to have it. The claimant would nevertheless be protected by the Act.

According to section 6 of the Act, a person is considered disabled if they can establish that they are suffering from a physical or mental impairment which has a substantial and long term adverse effect on their ability to carry out normal day to day activities. A question therefore arises: if a person is to claim perceived disability discrimination, what must their employer perceive? Must they perceive that all the elements of the definition of disability as set out in section 6 of the Act are satisfied in relation to the claimant? Or is it sufficient that they merely perceive that the claimant is ill? We understand that this question has not previously been addressed by the Employment Appeal Tribunal or higher court.

Tribunal’s view on perception discrimination

In this case, the tribunal took the view that the employer must perceive that all the elements of the definition of disability are satisfied for an employee to be able to claim perception discrimination.  To hold otherwise (that an employer must merely perceive that a claimant is ill) would afford greater protection to non-disabled persons who were perceived to be disabled on this basis than to disabled persons, who would need to meet the more stringent definition under the Act. Also, it would extend the scope of the legislation further than perhaps was intended. The tribunal therefore found that it must be the protected characteristic as defined in the Act that must be perceived. If, in the unique case of disability (which is the only protected characteristic to have a legal definition), this involves additional elements which comprise the legal definition, then it is those elements which must form part of the perception.

The tribunal acknowledged that this could appear to be imposing a high standard of what must be perceived, as most employers will not be aware of the components of section 6 and will be unlikely to address their minds in such terms of the employee’s condition and ask themselves whether it meets the definition. However, the tribunal observed that this was not necessarily the case. First, a number of conditions were deemed disabilities (for example, blindness, cancer, HIV and multiple sclerosis) and the employer would only need to perceive that the claimant was suffering from such a condition for the test for perceived disability discrimination to be satisfied. Second, while not necessarily aware of the legal definition and elements of section 6, if it were shown that the employer did indeed perceive that the claimant had a medical condition which had lasted, or was likely to last, for 12 months and which had substantial effects on his ability to carry out normal day to day activities, that would amount to a perception that the person had a disability. In other words, the perception simply has to be of the facts which, if established, would satisfy the definition - not a perception that the definition is actually satisfied.

The tribunal found that the question for employers is simply what did they know about the condition, its duration or likely duration, and its effects upon the claimant? If there are elements that they did not know or had not addressed, it will not be possible to show that they perceived any such disability. If, however, the evidence shows that they did have such information and, when analysed, that information would satisfy all the necessary components of disability, then that will amount to a perception of disability.

The tribunal went on to find that the perception must be that the claimant actually possesses that characteristic, and not merely that he might possess it. It is insufficient for an employer to suspect that the claimant possesses that characteristic: he must perceive that he actually does have it.  The tribunal acknowledged that there may be a ‘thin line between the two’, as there was a sliding scale of perception of the characteristic by the employer - the highest on this scale being knowledge, then perception, followed lastly by suspicion. This scale would need to be considered in a case of perception discrimination.

Comment

This case provides welcome clarification on the issue of what an employer must perceive in relation to an employee for the latter to claim that they are entitled to the protection of the Equality Act 2010 on perception disability grounds. The tribunal adopted a narrower test and this will inevitably make it more difficult for an employee to claim perception disability discrimination in view of the relatively high threshold contained within it.