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Unusual Types of Direct Discrimination by Employers



Everyone can be subject of discrimination without even realising it. But, the UK provides protection to all employees from unfair treatment by their employers under the Equality Act 2010. In such cases courts ask themselves the same question: ‘Had this employee been of a different race/sex/religion would the employer have treated him the same way?’ If the answer is “No” then discrimination probably took place. Such discriminatory treatment of employees can take many forms which are described below. 

One of the forms of discrimination is discrimination by association which arises when a person is discriminated against because of his/her association with a person who has the protected characteristic. It was established in Coleman v Attridge Law (2010). In this case the claimant argued that she was harassed into resigning from her job because she has a disabled son. It was held in this case that the fact that she was not herself disabled was not relevant as she was discriminated on the ground of disability of her son. 

Similarly, in Showboat Entertainment Centre v Owens (1984) a white applicant employed as a manager of amusement centre was dismissed because of his refusal to carry out a racially discriminatory instruction to exclude young black people from the amusement centre. It was held that racial discrimination can occur even if racial characteristics were of a different person than the one treated less favourably.

Another example of discrimination when a person did not have one of the protected characteristics is English v Thomas Sanderson Ltd (2008). In this case an employee was harassed on the ground of sexual orientation by 4 colleagues. Although, he was a heterosexual and married man. So, the question arose whether it is harassment if he was not gay, he was not perceived or assumed to be gay by his colleagues and he accepted that they did not believe him to be gay. Despite all of those factors it was held that harassment took place. Therefore, one would argue that the law is too wide as it covers such situations.  

However, perceptive discrimination is another example of discrimination when a person treats another less favourably because it is believed that that other has a protected characteristic. Although, it does not apply to marriage and civil partnership. It can take place when a person with a foreign sounding name applies for a job and is not appointed because the employer thinks that he is from an African country. It is a necessary type of discrimination because people discriminated against for not legitimate reasons can get compensation, although they do not have that characteristic.

Another specific type of discrimination is deterred discrimination. It takes place when an employer gives an indication that persons who have a particular protected characteristic would not be considered for the post. It must be shown that the person with the characteristic genuinely intended to apply for the post and that he/she was suitably qualified for it. Therefore, those who had the protected characteristic cannot get any damages if they did not have the required level of education or the necessary amount of experience to get the job. 

If that deterred discrimination was contained in an advertisement case against the employer can be brought by the Equality and Human Rights Commission. Those adverts can include jobs offered to ‘young graduates’ as they discriminate because of age. The discrimination takes place because older graduates eligible to apply are put off. But, whether an advert is discriminatory or not depends on whether a reasonable person would see it as discriminatory. 

So, intentions of people who discriminated are sometimes more important for courts than the fact that the person discriminated against did not have the protected characteristic. Therefore, associative and perceptive discrimination perform a very useful function to ensure effective protection of employees. Besides, people who do not even realise that they were discriminated against can receive protection as discriminatory adverts are dealt with by the Equality and Human Rights Commission which enables courts to ensures justice.