Eye of the Beholder

It is well known that the Equality Act recognises nine ‘protected characteristics.’ In the majority of cases the claim will require that a person holds that protected characteristic to bring a claim. Thus, one cannot make a claim in the employment tribunal that your employer indirectly discriminates against older workers if you are in fact an older worker, and neither of course an your employer as failed to make reasonable adjustments if you are not disabled.

On the surface this seems sensible and obvious. However, in the case of claims of direct discrimination (and harassment bit I do not address this here) there is an occasional exception.

Direct discrimination is defined in section 13(1) of the Equality Act 2010 as follows:

A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.

What is clear is that this definition means that if, for example, a woman believes they have been treated less favourably because of their sex – perhaps having been refused a job or been dismissed then they have grounds to make a claim of direct sex discrimination because they have been treated less favourably than they would have been if they had been male. However, the careful reader will note that the definition of direct discrimination does not say a person is discriminated because of their protected characteristic but simply a protected characteristic. 

This means that a person can, in some circumstances, successfully make a direct discrimination claim even if they do not hold the protected characteristic.

For example, suppose Angel, a male job applicant, completes an submits a job application. The employer, on reading the application sees the name and, concluding Angel is female because he has a female relative called Angel rejects the application as he does not want to recruit a woman to the role even though the application was better than those to whom the employer invited to interview.    In such a circumstance it is clear that Angel has been treated less favourably because the employer thought Angel was a woman, even though he was not. Because of this Angel would be able to bring a sex discrimination case against the employer because of their perception of Angel’s sex. Another example could be a worker subjected to homophobic abuse because co-worker’s thought he was gay or even, as in a recent case, because the employer thought the worker was disabled.

The key issue is whether the alleged discriminator perceives a person to be of a particular protected characteristic (evidence of this can of course be difficult to obtain) then if they are treated negatively because of this perceived characteristic then there may be  direct discrimination claim.