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Direct discrimination or harassment based on 'perceived' disability might well be illegal under the Framework Employment Directive. This may also be the position under existing UK law as regards employment. Discrimination by perception is to be more clearly covered by the new Equality Act 2010.
What is perceived disability?
Perceived disability is where the person does not actually have the disability but the discrimininator mistakenly thinks they do.
'Perceived' disability is not itself a legal term. The idea is that discrimination can be 'on grounds of disability' even if the 'victim' does not actually have a disability, but the discriminator thinks he does. In the same way, harassment can be 'related to disability' even if the vicitim is not actually disabled.
What is the basis of the argument?
It is very possible that under the European Framework Employment Directive direct discrimination and harassment based on perceived disability are illegal. The Coleman case focussed on discrimination based on association, but it can be strongly argued that the same wording of the Directive also covers perceived disability. This is on the basis that the discrimination or harassment is "on grounds of" or "related to" disability even if claimant does not actually have a disability.
What about UK law? Assuming that the Directive does cover perceived disability, it could also be argued that, as the Employment Appeal Tribunal held in the Coleman case (Re-interpreting the DDA to cover discrimination by association), the existing UK law must be interpreted so as to include direct discrimination and harassment based on perceived disability. Alternatively, if it is a public sector employer, the Directive could have 'direct effect'.
The argument for perceived disability being protected will probably not apply to other types of discrimination, such as the reasonable adjustment duty. This is because the Employment Directive wording there is different.
The current legal position on perceived disability will presumably not be established unless it is pursued far enough in a case and probably taken to the European Court. UK tribunals will also have to determine whether the DDA can be interpreted to include perceived disability (except for a public sector employer where the Directive could have direct effect).
Equality Act 2010
The Equality Act's wording is wide enough to include protection against direct discrimination and harassment based on perceived disability, when it comes into force.
This protection under the Equality Act will not be limited to employment - i.e. it will also apply to provision of services.
