Perceptive discrimination is included in the broad concept of direct discrimination. Perceptive discrimination occurs when someone is regarded less favorably because others mistakenly believe they have a protected characteristic when they don’t. There are a couple of examples in this post that reflect how harmful perceptive discrimination can be. It generally affects the productivity of a worker in an employer-employee relationship.
But before we go any further, let’s begin with a definition…
Discrimination
Discrimination on the basis of one of the nine protected characteristics stated in the Equality Act 2010 is prohibited. Age, handicap, gender reassignment, marriage, and civil partnership, pregnancy and maternity, race, religion or belief, sex; and sexual orientation are some of the factors to consider. The Act also defines various types of unlawful discrimination; some of which apply to all protected characteristics (e.g., direct discrimination, indirect discrimination, harassment, and victimization); while others only apply to specific protected characteristics (e.g., failing to make reasonable adjustments for a disabled employee).
When you treat employees less favorably because of an attribute you feel they possess, people know this as direct discrimination.
Protected Characteristics And Liability
Workers do not need to work for a certain amount of time in order to file a claim for unlawful discrimination. For employers, this means that a discrimination claim can come up in connection with a job advertisement, throughout employment, up to; and including job references for former employees, and beyond.
The Equality Act 2010 establishes nine protected traits in the UK. These are the following:
- Age
- Disability
- Gender reassignment
- Marriage and civil partnership
- Pregnancy and maternity
- Race
- Religion or belief
- Sex
- Sexual orientation
Both employers and workers are accountable for acts of discrimination that occur at work. In layman’s terms; this indicates that you can bring a discrimination claim against the employer (as an entity).
Even if the company did not intend to discriminate against someone; employers are accountable for the actions of their workers. people call it vicarious liability when this happens. If the employer can show they took all reasonable precautions to avoid discrimination in the first place; you prevent vicarious liability with this.
The 4 Types Of Discrimination
Under the Equality Act, there are four basic categories of discrimination:
- Direct discrimination
- Indirect discrimination
- Harassment
- Victimization
- Direct Discrimination
When you treat a person unfairly, we call this direct discrimination.Â
Direct discrimination does not have to be intentional; even if there is usually a conscious act of exclusion. This means that a claim can be successful even if prejudice was unintentional.
- Indirect Discrimination
Indirect discrimination is less visible than direct discrimination and is frequently unintentional.
In general, it arises when you implement a law or plan that applies to everyone; it is not discriminatory in and of itself, but it may disadvantage individuals who have a protected feature.
- Victimization
When you victimize an employee, they incur detriment’ as a result of their actions.
A loss, disadvantage, damage, or hurt can all be considered a ‘detriment.’ For example, being labeled a “troublemaker,” being ignored and left out, being denied training or advancement, or getting laid off.
- Harassment
Harassment is defined as “undesirable behavior” that is motivated by a protected feature. The intention is to violate a person’s dignity or to create an intimidating, hostile, demeaning, humiliating, or insulting situation for them.
Harassment can take many forms, including bullying, nicknames, rumors, and intrusive or inappropriate inquiries and statements. It is not a defense to claim that the behavior has no intention to offend or was mere ‘banter.’ When it comes to harassment, the victim’s perspective is more significant than the harasser’s. Even if they do not possess the same trait as the harassed colleague; someone who witnesses this type of behavior can claim harassment if it has harmed their dignity at work.
Perceptive Discrimination
It is illegal in the UK to treat someone less favorably at work because of specified characteristics such as age, sex, handicap, race, or religion. This includes treating someone unfairly due to a preconceived notion that they have a certain trait.
As an employer, you should not stereotype any job applicants or employees because they have one of these protected qualities; or because you wrongly believe they belong to a protected group. Perceptive discrimination is the term for it.
Perceptive discrimination is the legal standard for when someone is getting bad treatment because they suspect them of having a specific trait under the Equality Act 2010; whether or not this is real.
It occurs when an employee (or job candidate) is getting unfair treatment because others believe they have a feature that they should not have.
Those who are getting unfair treatment while not having a specific feature may allege direct discrimination based on perception. However, this does not apply to the protected qualities of pregnancy and maternity; as well as marital or relationship status unions.
How To Avoid Perceptive Discrimination
It’s critical to have a policy in place on equality and diversity that outlines your strategy for preventing discrimination and encouraging an inclusive workplace.
Training is an effective way to get this message through to employees, and sensitivity training is especially beneficial for new hires.
This should focus in particular on the dangers of workplace banter; and how even jokes can be discriminatory if they offend someone.
It’s also critical to have a clear and dependable grievance system in place so you can report perceptive discrimination.
As a result, it’s critical that employees trust you to handle any reported issues fairly and consistently; as turning a blind eye to specific behavior may deter individuals from reporting incidents in the future.
Finally, while perceptive discrimination is a lesser-known form of prejudice; it’s critical that you take action to prevent and manage incidences. Making the effort to do so will result in a safe and positive working atmosphere; which will undoubtedly enhance your company’s productivity and retention rates.
How Does The Law Protect Employees Against Perceptive Discrimination?
Job applicants and employees get legal protection against direct discrimination; including perceptive discrimination, under the requirements of the Equality Act 2010. An employer will be directly discriminating against an application or worker; if they treat that person less favorably than they treat or would treat others at work “due to a major protected trait,” according to section 13(1) of the Act. They will consider this as unlawful discrimination; the accuser will be able to file a complaint with the employment tribunal.
This means that in any claim for unlawful discrimination; there will be no requirement for the person alleging unfavorable treatment to demonstrate that they genuinely possess the feature for which they say they treat them unfairly. The focus of the employment tribunal will be on whether any discrimination occurred as a result of that particular attribute or perception; with the focus on the relationship between the presumed characteristic and the treatment.
Treating someone unfairly in relation to their employment terms and conditions, pay and benefits, any promotion and transfer opportunities, training, and recruitment; as well as dismissal and redundancy; are all examples of unfavorable treatment indirect discrimination by perception.
Perceptive discrimination examples; if you fire or lay off an employee because they suspect them of having a specific feature; it is illegal discrimination and automatically unjust dismissal. If you harass or victimize someone as a result of a supposed protected feature; the Act will provide them with protection. Victimization occurs when someone suffers a negative consequence as a result of complaining about discrimination or harassment.
Discrimination Risks For Employers
Although one of the most prominent areas of risk is during the recruitment process; perceptive discrimination can arise in regard to a variety of other sorts of unfavorable treatment at work. This is when it is typical for persons in charge of hiring to make incorrect assumptions about a candidate; such as rejecting a job application from a white applicant that the employer thinks is a black applicant because their name has an African origin.
People perceive this as less favorable treatment because of race. Discrimination based on perception also occurs when an applicant is intentionally passed over for a second interview because they were seen to be transgender during the first interview. It is due to gender reassignment.
You perceive discrimination in the workplace; which can lead to legal action as well as have a negative influence on your company’s operations. If employees believe they are getting fair treatment at work; it may easily escalate to conflict, tainting working relationships, and harming your company’s reputation. It can also result in significant employee turnover or; at the very least, lower employee morale and productivity.
Managing Legal Risk Of Discrimination By Perception
Employers face a substantial danger of perceptive discrimination especially as there are few case law precedents of how different sorts of unfair treatment that a tribunal evaluates in the context of each of the protected qualities.
It is true that establishing facts sufficient to persuade the tribunal of a prima facie case, i.e. that any unfavorable treatment was due to a perceived protected trait, can be difficult from the claimant’s standpoint. Employers should be wary of relying on any evidentiary issues that a claimant may encounter.
This means that businesses must take proactive measures to prevent employment discrimination, including discrimination based on impression. As a result, employers must be aware of the many sorts of discrimination and how perceptive discrimination accusations can emerge. It’s also critical that those in charge of recruiting, dismissing, and other management decisions completely comprehend this notion.
Employers must also ensure that proper grievance procedures are in place to handle any employee complaints of unfair treatment based on a protected characteristic.
How Should A Perceptive Discrimination Grievance Be Handled?
Though it’s not always easy for a claimant to succeed in a claim for direct discrimination; particularly perceptive discrimination, where you need to establish sufficient facts that the treatment they get is less favorably because of a trait they don’t even have; you should still investigate what happened and see if the allegations made have any merit.
This implies you should investigate the situation thoroughly, fairly, and swiftly, just as you would any other complaint. You should do this without weakening the impact of any unfair treatment on the complainant; simply because they lack the requisite trait.
Even if the charges of perceptive discrimination are inconclusive, it’s a must you take action to eliminate or mitigate the negative impact of any unfavorable treatment on the complainant. This is because; under these circumstances, the onus of providing a nondiscriminatory explanation in the context of any tribunal challenge is likely to lie on you. In any case, handle the situation with care to assist in restoring a constructive working relationship with the complainant and protect your employer’s brand, if at all possible.
Having a fair and easily accessible grievance system in place, as well as dealing with any complaints quickly and compassionately, will give you the best chance of resolving the situation without resorting to legal action. If you can not resolve the problem internally, you should seek immediate legal guidance from a work law expert.
Perceptive Discrimination Examples
There are a lot of perceptive discrimination examples, and all of the perceptive discrimination examples are harmful to the individual people discriminate.
It’s possible that perceptive discrimination will occur If any of these examples take place:
- A staff rejects to oversee a pupil because he or she is transsexual, according to the staff member.
- Because they believe the employee has a disability, a company decides not to promote them.
- Reluctant to employ somebody with an Arabic name because you mistakenly believe they are a Muslim.
- Harassing a heterosexual employee who appears campy at work because they are a homosexual
- Failure to promote a member of staff due to a misunderstanding about their handicap.
- When a company rejects a white man’s employment application because of the sound of his name, the management assumes he is black.
- If a female job candidate is turned down by a company.
The above-listed examples of perceptive discrimination are those that make an individual or an employee feel less about themselves and do not give them the room to grow, they affect the particular individual.
The categories of people in the listed examples of perceptive discrimination are always low when it comes to productivity which will affect the individual or organization discriminating against them.
Perceptive Discrimination Case
The panel upheld a judgment of disability discrimination by the perception in the recent employment appeal tribunal case of Chief Constable of Norfolk v Coffey. In this case, the claimant had been a Wiltshire Police officer since 2011 when he asked for a job transfer to Norfolk Police. The applicant has hearing loss but had passed a function test and been admitted into Wiltshire Police. The claimant’s application to switch forces, however, was denied by Norfolk Police because her hearing was just below the acceptable quality required for recruiting. Furthermore, fears that the claimant would have been allocated restricted responsibilities if her hearing deteriorated further resulted in her application being denied.
The tribunal determined that rejecting the claimant’s application on this grounds amounted to direct discrimination based on the belief that the claimant was disabled; or would become disabled in the future.
The employer’s attempt to appeal the tribunal’s ruling at first instance was put away by the employment appeals tribunal, which takes the judgment.
According to Section 13 of the Equality Act 2010, if ‘A’ treats ‘B’ less favourably ‘because of a protected trait,’ he is actively discriminating against him.
Because this definition is broad enough to include discrimination based on the perception that someone possesses a protected feature, a claimant will be protected under the Equality Act 2010.
If they discriminate against someone at work, they may be eligible to file a claim with the employment tribunal, but they must do so within three months of the act of discrimination, plus one day. In order to best preserve the position and attain an acceptable solution; it is critical to get legal advice and take action as soon as possible.
FAQ
What are the 4 main types of discrimination?
The 4 main types of discrimination are;
- Direct discrimination
- Indirect discrimination
- Harassment
- Victimization
What is perceptive discrimination?
Perceptive discrimination is the legal term for when a person is treated badly because it is assumed that they have a protected trait under the Equality Act 2010, whether or not this is genuine.
What is discrimination by perception in relation to the Equality Act?
Discrimination by perception refers to discrimination against someone because they are incorrectly seen to have a protected trait, for as when an employer believes an employee is gay or of a certain ethnicity and treats him or her less generously as a result.
