Discrimination is unlawful under the Equality Act 2010 and contravenes the Academy Student Charter and CUKSN Respect Policy

Discrimination occurs when a person is treated less favourably than someone else on the basis of a protected characteristic. Under the Equality Act 2010, protected characteristics are: age; disability; gender reassignment; marriage and civil partnership; pregnancy and maternity; race; religion or belief; sex; and sexual orientation. 

Direct discrimination
This means treating someone less favourably than someone else because of a protected characteristic. An example would be refusing to admit a student because of their race, for example because they are Roma. In the case of age, treating someone less favourably than someone else may be justified. 

It is not possible to justify direct discrimination, so it is always unlawful. There are, however, exceptions to further and higher education provisions that allow, for example, single-sex institutions to admit only students of one gender without this being unlawful direct discrimination.

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). So a gay student cannot claim that excluding them for fighting is direct discrimination on grounds of sexual orientation unless they can show that a heterosexual or bisexual student would not be excluded for fighting. 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:
  • Racial segregation is deliberately separating people by race or colour or ethnic or national origin and 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.
It is not direct discrimination against a male student to offer a female student special treatment in connection with her pregnancy or childbirth.

It is not direct discrimination against a non-disabled student to treat a disabled student more favourably.

For example:

A further education college rejects a male applicant’s application to a childcare course as they do not think it is appropriate for a male to be working with children. This would be unlawful direct discrimination on the grounds of sex.

A university gives a student with dyslexia longer to complete his exam than other students. A non-disabled student asks for more time to complete her exam as she accidently missed a question, but this is rejected. This would not be unlawful direct discrimination.

A student with carpal tunnel syndrome has a scribe to take notes during lectures. Another student requests a scribe as he needs to miss a lecture to attend a wedding. The university does not agree to this request. This would not be unlawful direct discrimination. 

Discrimination based on association

Direct discrimination also occurs when you treat a student less favourably because of their association with another person who has a protected characteristic (other than pregnancy and maternity).

This might occur when you treat a student 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
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.

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.

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 you have not complied with your 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 in full here. 
Back

There are two ways you can tell us what happened