Can A Person Bring A Disability Discrimination Claim Based On An Employer's Perception That The Claimant Is Disabled Or Suffers From A Particular Type Of Disability When In Fact The Claimant Does Not?

Can a person bring a disability discrimination claim based on an employer's perception that the Claimant is disabled or suffers from a particular type of disability when in fact the Claimant does not? Fatim Kurji considers the recent case law on this topic and the possible changes brought about by the new Equality Act. That those suffering from a disability should not be discriminated against in the workplace is now a long established and seemingly obvious principle. When considering the issue of whether that same protection should be afforded to somebody who was discriminated against not because they were disabled, but because they were associated with somebody else who was disabled, the European Court of Justice ruled that they were entitled to such protection (Coleman v Attridge Law ECJ C-303/06). But what happens when an employer mistakenly believes that somebody has a disability, and discriminates on the basis of that belief? Two cases and a change in the law grapple with this complex issue. J v DLA Piper [2010] IRLR 936 concerned the withdrawal of a job offer to the Claimant on the basis that she informed her prospective employer that she had previously suffered from depression. At first instance, her claim was dismissed on the basis that she was not suffering from a disability. At the EAT the Claimant argued, inter alia, that whether or not she was in fact disabled was not relevant; what mattered was that the employer perceived her to be disabled, and discriminated against her on that basis. She argued that her case was analogous to Coleman and that the DDA should be given a sufficiently wide interpretation so as to allow her claim to proceed. The EAT disagreed (although the case was ultimately remitted on other grounds). The language of the DDA required there to be an actual disability and in this case there was none; such a leap in the law could not be made without a reference to the ECJ. The matter had a second consideration in the EAT in the case of Aitken v Commissioner of Police of the Metropolis (UK EAT/0226/09). Here, the Claimant, who suffered from a compulsive obsessive disorder (which caused him to be aggressive on occasion, but not necessarily dangerous), was considered by his employer to have a dangerous mental illness because of his aggression. On the basis of that belief the employer retired the Claimant. The Claimant argued that less favourable treatment on the ground or by reason of a fear, belief, perception or...