The three types of discrimination
The Act consolidates existing law into a single legal framework and while many of the concepts of discrimination remain the same as in previous equality legislation there are some areas that were not previously covered. This section describes the various types of discrimination and how they apply to the further and higher education provisions.
Direct discrimination occurs when you treat a student less favourably than you treat (or would treat) another student because of a protected characteristic. So a very basic example would be refusing to admit a student because of their race, for example because they are Roma.
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. 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.
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.
Discrimination arising from disability occurs when you treat a disabled student unfavourably because of something connected with their disability and cannot justify such treatment.
Discrimination arising from disability is different from direct discrimination. Direct discrimination occurs because of the protected characteristic of disability. For discrimination arising from disability, the reason for the treatment does not matter; the question is whether the disabled student has been treated unfavourably because of something connected with their disability.
Discrimination arising from disability is also different from indirect discrimination. There is no need to show that other people have been affected alongside the individual disabled student or for the disabled student to compare themselves with anyone else.
Discrimination arising from disability will occur if the following three conditions are met:
- you treat a disabled student unfavourably, that is putting them at a disadvantage, even if this was not your intention, and
- this treatment is because of something connected with the disabled student’s disability (which could be the result, effect or outcome of that disability) such as an inability to walk unaided or disability-related behaviour, and
- you cannot justify the treatment by showing that it is ‘a proportionate means of achieving a legitimate aim’. This is explained above.
A student with autism often speaks out of turn during tutorials which can create a disruptive atmosphere for the tutor and other students. Because of his behaviour, he is asked not to attend tutorials. This is likely to be discrimination arising from disability.
Knowledge of disability
If you can show that you:
- did not know that the disabled student had the disability in question, and
- could not reasonably have been expected to know that the disabled student had the disability
- then the unfavourable treatment does not amount to unlawful discrimination arising from disability.
If your agent or employee knows of a student’s disability, you will not usually be able to claim that you do not know of the disability.
A student tells his tutor he has cancer and requires time off to attend medical appointments. The student misses a practical experiment which counts towards his final mark as he had a hospital appointment. As the tutor knew the pupil needed time off to attend medical appointments and no reasonable adjustments were made, for example, enabling him to do the practical exercise at another time, this is likely to be unlawful discrimination arising from disability.
Relevance of reasonable adjustments
By acting quickly to identify and put in place reasonable adjustments for disabled students, you can often avoid discrimination arising from disability, although there may be cases where an adjustment is unrelated to the unfavourable treatment in question.
If you fail to make an appropriate reasonable adjustment, it is likely to be very difficult for you to argue that the unfavourable treatment is justified.
Diweddarwyd ddiwethaf: 19 Feb 2019