What is discrimination?
This means treating someone less favourably than someone else because of a protected characteristic.
It is not possible to justify direct discrimination, so it is always unlawful. There are, however, exceptions to the further and higher education provisions that allow, for example, single-sex institutions to only admit 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. For example, if a gay student thought they had been unfairly treated because of their sexuality they would have to demonstrate that a heterosexual person would not have been treated in the same way. 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.
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 carpel 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 occurs when you apply a provision, criteria 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’ is not defined in the Act but a rule of thumb is that a reasonable person would consider that disadvantage had occurred. It can take many different forms, such as denial of an opportunity or choice, deterrence, rejection, or exclusion.
Indirect discrimination applies to all the protected grounds other than pregnancy and maternity, although something that disadvantages students who are pregnant or new mothers may be indirect sex discrimination.
‘Provision’, ‘criterion’ or ‘practice’ are not defined in the Act but can be interpreted widely and include:
● Arrangements (for example, for deciding who to admit)
● The way that education, or access to any benefit, service or facility is offered or provided
● One-off decisions
● Proposals or directions to do something in a particular way.
They may be written out formally or they may just have developed as you have worked out the best way of achieving what it wanted to do.
Indirect discrimination will occur if the following 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.
An environmental science student with MS suffers from manual dexterity problems, particularly hand tremors. She is prevented from undertaking a practical experiment involving volatile chemicals as she may spill or drop the substances while conducting the experiment. This would pose a health and safety risk to her and other students on the course. This is unlikely to be indirect discrimination as it could be justified as a proportionate means of achieving a legitimate aim.