Associative and perceptive discrimination 


Under section 13 of the EA 10, to claim direct discrimination 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”.


In other words, it is enough that the detrimental treatment is due, in some way, to a protected characteristic. This broad language has important implications for the scope of protection under the EA 10. The definition is wide enough to prohibit discrimination against a person without the protected characteristic because they associate with someone who does. For example, it would be discrimination to harass someone because their son is disabled. 


Similarly, it is discrimination to harass someone by using insulting language linked to the protected characteristic, even if everybody knows the person who suffers the detriment does not have the protected characteristic. For example, it would be sexual orientation discrimination to harass a heterosexual man using homophobic insults, although everyone knows the target of the harassment is not gay (English v Thomas Sanderson Ltd [2008] EWCA Civ. 1421). 


For the same reason, it can be unlawful discrimination to treat a person less favourably because they engage in acts connected to a protected characteristic, for example, acting as a witness to support the grievance of a co-worker who has suffered discrimination, speaking up in the workplace on behalf of disabled workers, or campaigning politically against discrimination.


In EAD Solicitors LLP and 7 Others v Garry Abrams [2015] UKEAT/0054/15/DM, the EAT ruled that a limited company can claim discrimination when it suffers detrimental treatment as a result of the protected characteristic of an individual. The case made new law (see page 202) and suggests that the concept of associative discrimination is wide enough to provide some protection from direct discrimination to those who contract via personal service companies or umbrella companies (see Chapter 2).


The definition of direct discrimination is also broad enough to ban “perceptive” discrimination or harassment. This is where an employee is treated less favourably because they are mistakenly believed to have a protected characteristic, for example, where an employee suffers abuse for being a Muslim when they are of another faith, or of no faith, or where a worker is discriminated against because they are wrongly believed to be older than they are. 


A new case, Thompson v London Central Bus Company Limited [2015] UKEAT/0108/15/DM, has suggested that it may also be possible to claim “associative” and “perceptive” victimisation (see below: Victimisation). 


Protection against associative and perceptive discrimination does not extend to the protected characteristics of pregnancy, maternity, marriage or civil partnership. Only individuals who have these protected characteristics themselves are protected (sections 8 and 18, EA 10).