The Equality Act 2010 outlines that it is unlawful to discriminate against anyone because of a protected characteristic:
Age
Gender reassignment
Marriage or civil partnership
Pregnancy or maternity leave
Disability
Race, including colour, nationality, ethnic or national origin
Religion, belief or lack of
Sex
Sexual orientation
The law also protects an associate of a person with a protected characteristic, for example a family member or friend and if you have made or are supporting someone else's complaint of discrimination.
The Equality Act 2010 outlines the requirements for public bodies, including higher education providers, to eliminate unlawful discrimination, harassment and victimisation.
The Equality Act 2010 outlines the requirements for public bodies, including higher education providers, to eliminate unlawful discrimination, harassment and victimisation.
Types of discrimination
Direct discrimination
If someone is treated less favourably than another person because of a protected characteristic, this is direct discrimination. Direct discrimination can also occur through perception and association.
Direct discrimination is always unlawful including:
Racial segregation - the deliberate separation of people by race, colour, ethnic or national origin.
Sex - in relation to less favourable treatment because woman is breast-feeding or relating to pregnancy or childbirth.
However, there are exceptions:
Age - if it can be demonstrated that there is a proportionate means of achieving a legitimate aim, then decisions based on age would not be discrimination.
Disability - it is not discrimination to treat someone with a disability more favourably that someone without a disability.
Marriage and civil partnership - it is only discrimination in relation to work or employment.
Sex - In relation to a man, no account is to be taken of special treatment afforded to a woman in connection with pregnancy or childbirth.
Direct discrimination is always unlawful including:
Racial segregation - the deliberate separation of people by race, colour, ethnic or national origin.
Sex - in relation to less favourable treatment because woman is breast-feeding or relating to pregnancy or childbirth.
However, there are exceptions:
Age - if it can be demonstrated that there is a proportionate means of achieving a legitimate aim, then decisions based on age would not be discrimination.
Disability - it is not discrimination to treat someone with a disability more favourably that someone without a disability.
Marriage and civil partnership - it is only discrimination in relation to work or employment.
Sex - In relation to a man, no account is to be taken of special treatment afforded to a woman in connection with pregnancy or childbirth.
In order for someone to show that they have been directly discriminated against, they must compare what has happened to them to the treatment a person without their protected characteristic is receiving (or would receive).
A student does not need to find an actual person to compare their treatment with, but can rely on a hypothetical person if they can show there is evidence that such a person would be treated differently.
A student does not need to find an actual person to compare their treatment with, but can rely on a hypothetical person if they can show there is evidence that such a person would be treated differently.
There is no need for someone claiming direct discrimination because of racial segregation or pregnancy or maternity to find a person to compare themselves to because:
- Racial segregation will always be unlawful direct discrimination.
- To claim pregnancy or maternity discrimination, a female student must show that she has been treated unfavourably because of her pregnancy or maternity and does not have to compare her treatment to the treatment of someone who was not pregnant or a new mother.
Discrimination based on association
Direct discrimination also occurs when a student is treated less favourably because of their association with another person who has a protected characteristic (other than pregnancy and maternity).
This might occur when a student is treated less favourably because their sibling, parent, carer or friend has a protected characteristic.
Discrimination based on perception
Direct discrimination also occurs when you treat a student less favourably because you mistakenly think that they have a protected characteristic (other than pregnancy and maternity).
Discrimination because of pregnancy and maternity
It is discrimination to treat a woman (including a female student of any age) less favourably because she is or has been pregnant, has given birth in the last 26 weeks or is breastfeeding a baby who is 26 weeks or younger.
It is direct sex discrimination to treat a woman (including a female student of any age) less favourably because she is breastfeeding a child who is more than 26 weeks old.
Indirect discrimination
It is discrimination to treat a woman (including a female student of any age) less favourably because she is or has been pregnant, has given birth in the last 26 weeks or is breastfeeding a baby who is 26 weeks or younger.
It is direct sex discrimination to treat a woman (including a female student of any age) less favourably because she is breastfeeding a child who is more than 26 weeks old.
Indirect discrimination
Indirect discrimination occurs when you apply a provision, criterion or practice in the same way for all students or a particular student group, such as postgraduate students, but this has the effect of putting students sharing a protected characteristic within the general student group at a particular disadvantage.
It doesn’t matter that you did not intend to disadvantage the students with a particular protected characteristic in this way; what does matter is whether your action does or would disadvantage such students compared with students who do not share that characteristic.
It doesn’t matter that you did not intend to disadvantage the students with a particular protected characteristic in this way; what does matter is whether your action does or would disadvantage such students compared with students who do not share that characteristic.
Disadvantage can take many different forms, such as denial of opportunity or choice, deterrence, rejection or exclusion.
Indirect discrimination applies to all protected characteristics other than pregnancy and maternity, although something that disadvantages students who are pregnant or new mothers may be indirect sex discrimination.
Indirect discrimination will occur if these four conditions are met:
- You apply (or would apply) the provision, criterion or practice equally to all relevant students, including a particular student with a protected characteristic, and
- The provision, criterion or practice puts (or would put) students sharing a protected characteristic at a particular disadvantage compared to relevant students who do not share that characteristic, and
- The provision, criteria, practice or rule puts (or would put) the particular student at that disadvantage, and
- You cannot show that the provision, criteria or practice is justified as a ‘proportionate means of achieving a legitimate aim’.
What is a ‘proportionate means of achieving a legitimate aim’?
To be legitimate, the aim of the provision, criteria or practice must be legal and non-discriminatory and represent a real objective consideration. In the context of further and higher education, examples of legitimate aims might include:
- Maintaining academic and other standards
- Ensuring the health and safety and welfare of students
Even if the aim is legitimate, the means of achieving it must be proportionate.
Proportionate means ‘appropriate and necessary’, but ‘necessary’ does not mean that the provision, criterion or practice is the only possible way of achieving the legitimate aim.
Proportionate means ‘appropriate and necessary’, but ‘necessary’ does not mean that the provision, criterion or practice is the only possible way of achieving the legitimate aim.
Although the financial cost of using a less discriminatory approach cannot, by itself, provide a justification, cost can be taken into account as part of the further or higher education institution’s justification, if there are other good reasons for adopting the chosen practice.
The more serious the disadvantage caused by the discriminatory provision, criterion or practice, the more convincing the justification must be.
In a case involving disability, if an institution has not complied with its duty to make relevant reasonable adjustments, it will be difficult for you to show that the treatment was proportionate.
Read the Equality and Human Rights Commission (EHRC)'s information about discrimination.
Academy Student Charter and CUKSN Respect Policy
Read the Equality and Human Rights Commission (EHRC)'s information about discrimination.
Academy Student Charter and CUKSN Respect Policy