Associative and perceptive discrimination 





To claim direct discrimination under section 13 of the EA 10, there is no need for the person who suffers the detriment to have the protected characteristic themselves. The test is 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 on behalf of a disabled co-worker. Depending on the context, there may also be victimisation (see page 236) and associative harassment (see page 231). 


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, where an employee is treated less favourably for being a Muslim when they are of another faith or no faith, or where a worker is discriminated against because they are mistakenly thought to be older than they are or a job applicant is denied a role because of a mistaken belief that they are disabled (Chief Constable of Norfolk v Coffee [2018] UKEAT/0260/16/BA). 


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



In EAD Solicitors & Ors v Abrams [2015] UKEAT/0054/15/DM (summarised on page 220), a limited company was allowed to claim associative discrimination for the first time.