This article explores the concept of discrimination by perception, providing insight into its definition, legal framework, and actionable steps for individuals who have experienced or are concerned about discrimination based on perceived characteristics.
We've created this employment law guide for employees, employers and HR professionals in the UK looking for clarity on discrimination by perception and guidance on addressing and preventing such discrimination in the workplace and society.
Table of Contents
What is discrimination by perception?
Discrimination by perception is when someone is treated unfairly because others believe they have a specific protected characteristic, even if it's not true.
This type of discrimination is protected by law under the Equality Act 2010.
Many employers and HR professionals might not be familiar with this form of discrimination, which can lead to unintentional violations of employment laws. It's important for employers to take steps to prevent discrimination by perception among their staff and leaders.
What is direct discrimination by perception?
Direct discrimination by perception happens when someone is treated unfairly based on how others see them, even if they don't actually have a protected characteristic. It's important to know that discrimination, in a legal sense, means treating someone differently because of who they are, like their race or disability.
Another term to understand is associative discrimination, which occurs when someone is discriminated against because of their relationship with someone who does have a protected characteristic.
Examples of discrimination by perception
To understand discrimination by perception, let's look at some common examples.
Discrimination in the workplace can be subtle, so it's important to recognise these situations to understand how they can harm teamwork.
Examples of discrimination by perception include:
An employer not hiring someone because they think the person is gay. If the person is actually gay, this would be regular discrimination under the law.
An employee refusing to work with someone because they assume the person is transgender.
An employer not promoting someone because they believe the person has a disability.
Airport staff selecting a passenger for extra checks based on their race or clothing.
An employer treating someone differently, like not promoting them, because they think the person is pregnant.
An employer rejecting an employee because of their gender.
According to section 13 (1) of the Equality Act 2010, employers are guilty of direct discrimination if they treat someone less fairly at work because of a protected characteristic. If an employee or job applicant can prove this, they can take their case to an employment tribunal.
How to address discrimination by perception
We've discussed how to recognise discrimination by perception, but what about addressing it if you're experiencing it from your employer?
Talk to your employer directly. If it's just one person treating you unfairly, speak with them. If it's a broader issue, talk to your manager.
Keep records. Note down what's been said or incidents where you were treated differently from your colleagues.
Check your company's policies. They should clearly state that discrimination is not tolerated. This helps you hold them accountable and shows them the seriousness of the situation.
Know your rights under the Equality Act 2010 and mention them to your employer.
Consider making a formal complaint or grievance to HR. This creates a record of what you've been through and your efforts to address it, which could be useful if you decide to take legal action later.
Consider legal action. This could involve taking your employer to a tribunal to seek compensation.
How to prevent discrimination by perception in the workplace
Discrimination by perception in the workplace can cause various problems, from legal issues for employers to low morale and conflicts among employees. However, there are steps companies can take to prevent this harm:
Review your policies
If your company doesn't have anti-discrimination policies, create them. These policies should clearly define what constitutes discrimination, how to file a complaint, the process for reviewing cases, and what protected characteristics are. Existing policies should be reviewed with staff to ensure effectiveness and gather suggestions for improvement.
Educate staff
Ensure all staff read and understand the anti-discrimination handbook. Mandatory training courses can help staff understand their responsibilities and rights under the law and teach them what to do if they experience or witness discrimination.
Follow grievance procedures
It's important to follow the grievance procedure outlined in the anti-discrimination policy to the letter. Failure to do so can be used as evidence against the employer in a tribunal.
Employers can find more information about their responsibilities towards their staff on the ACAS website.
How can Lawhive help?
Are you experiencing discrimination based on perception at your workplace? Whether from a manager or coworker, it is unlawful, and you don't have to tolerate it.
Lawhive's network of experienced employment law solicitors offers prompt legal advice and support regarding workplace discrimination.
We may be able to assist you in making a claim against your employer for discrimination under a conditional fee agreement. This means you won't have to pay any fees upfront, and you'll only pay a pre-agreed success fee if you win your case.
To learn more, contact our legal assessment team today for a free case evaluation. Let us help you protect your rights and address discrimination in the workplace.