Hatchers’ Consultant and employment law expert Bill Lamplugh has warned that there is likely to be a sharp rise in the number of claims as a result of the introduction of new “associative” and “perceived” discrimination rules.
"These new rules leave employers more vulnerable so it is vital that they understand the significance of these changes” said Bill.
“Under statute law as it stood until the Equality Act came into force on 1st October 2010, the general rule was that "associative" and "perceived" discrimination were unlawful in the context of race and religion or belief (and arguably sexual orientation) only. From 1st October 2011 "associative" and "perceived" discrimination are unlawful in the context of the other protected characteristics as well (i.e. age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, and sex discrimination).”
For practical purposes "associative discrimination" (or "discrimination by association") in an employment context refers to an employer treating one employee or group of employees less favourably than others as a result of their association with a person against whom it would be unlawful to discriminate. The classic example is that of an employer treating a particular employee less favourably than other employees for being absent from work because that employee took time off to look after a disabled child.
“Perceived discrimination" in an employment context refers to an employer treating one employee or group of employees less favourably than others for a reason which would mean the treatment would be unlawful discrimination if it were true. The classic example is where an employer, or other employees for whom the employer is vicariously responsible, treats an employee less favourably than others because of what the employer perceives as his homosexuality when in fact the employee is not homosexual.
Bill explained:
“That has now changed as "associative discrimination" and "perceived discrimination" by employers resulting in less favourable treatment of one employee or group of employees in comparison to others is now clearly unlawful if it is because of any of the specified "protected characteristics" (age, disability, gender, religion etc)”
“The essential point to grasp is that there is no requirement that it must be the employee who has the protected characteristic thus giving potential to a sharp rise in discrimination claims."
