In the past, the Employment Tribunal had to decide whether or not someone who was repeatedly taunted as being gay could be a victim of harassment under the Employment Equality (Sexual Orientation) Regulations 2003, even where that person was in fact heterosexual (English v Thomas Sanderson Ltd.).
The Equality Act 2010 has now harmonised and replaced previous discrimination legislation and specifically outlaws discrimination by perception. The Act contains a new definition of direct discrimination. This occurs when the reason for a person being treated less favourably than another is one of the protected characteristics covered by the Act. This means that protection is afforded to someone who does not themselves have the protected characteristic but has suffered less favourable treatment because they were wrongly thought to possess a protected characteristic.
Employers must show that they operate a zero-tolerance policy to discriminatory behaviour of any kind and ensure that decisions affecting employees cannot be challenged as having been made based on a discriminatory perception.
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