Associative and perceptive discrimination

To claim direct discrimination under section 13 of the EA 10, the person who suffers the detriment need not have the protected characteristic. The test says simply that “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”.

This definition is wide enough to capture less favourable treatment of someone because they associate with another who has the protected characteristic (associative discrimination). For example, it would be discrimination to treat someone less favourably because their son is disabled, or because they speak up for a disabled co-worker. Depending on the context, there may also be victimisation (see page 240) and associative harassment (see page 237).

The definition of direct discrimination is also broad enough to ban perceptive discrimination. This is where an employee is treated less favourably because they are mistakenly believed to have a protected characteristic, for example, if someone is mistakenly believed to be a Muslim when they are of another faith or no faith.

There is no protection from associative and perceptive discrimination due to pregnancy, maternity, marriage or civil partnership. Only someone with one of these protected characteristics is protected (sections 8 and 18, EA 10).

In EAD Solicitors v Abrams [2015] UKEAT/0054/15/DM, a personal service company was allowed to claim associative discrimination.