What is discrimination?

This means treating someone less favourably than someone else because of a protected characteristic. In the case of age, treating someone less favourably than someone else may be justified. Another 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:

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 University 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. 

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.

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).

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:

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:

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:

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.

For Example:

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.

External resources

Samaritans - https://www.samaritans.org/branches/central-london/

Samaritans provides emotional support to anyone in emotional distress, struggling to cope, or

at risk of suicide.

Their phone line is open 24 hours a day, 365 days a year.

116 123 

Citizens Advice - https://www.citizensadvice.org.uk

Citizens Advice is a network of independent charities offering confidential advice online, over the phone, and in person, for free. independent and totally impartial. You can contact an adviser through their national phone service: Adviceline (England): 0800 144 8848. Adviceline’s available 9am to 5pm, Monday to Friday. It's not available on public holidays.

To find your local citizens advice office you can use your post code on the contact us page - https://www.citizensadvice.org.uk/about-us/contact-us/contact-us/contact-us/

True Vision - https://www.report-it.org.uk/your_police_force

True Vision has been developed so that you can report hate crimes online - you do not have to visit a police station to report. 

It offers an online report that will be forwarded to the relevant police force for investigation.

Disability Equality - https://disability-equality.org.uk/

Offers advice ranging from financial advice to reporting a hate crime, working together to further the human rights of disabled people. 

You can contact 01772 558 863, 9.30am to 4.00 pm or send a text on 07709710195.

Help and assistance on contacting and reporting to the police, services and information as well as support and what's going on in your area.

For emergencies call 999. 

Victim Support: (24/7 support) - https://www.victimsupport.org.uk
Victim Support operates a 24/7 support line and live chat service, every day of the year, offering specialist emotional and practical support to anyone who has been a victim or a witness. You don't have to report a crime to get help from Victim Support.
Telephone: 0808 16 89 111
Live chat: https://www.victimsupport.org.uk/help-and-support/get-help/support-near-you/live-chat
My Support Space: mysupportspace.org.uk/MoJ
Website: victimsupport.org.uk

All these services are free, confidential and available 24/7

This helpline provided assistance to individuals struggling with bullying issues, whatever the nature of the abuse.

We are open from 9am to 5pm Monday to Friday

Young Minds - https://www.youngminds.org.uk/

Offers young people, parent and professionals online support and resources where they can navigate through the website for help and advice on specific issues, such as mental health, bullying, drug and alcohol etc 

Samaritans - https://www.samaritans.org/branches/central-london/

Samaritains is for anyone in emotional distress, struggling to cope, or

at risk of suicide.

Their phone line is open 24 hours a day, 365 days a year.

116 123 

Anti Bullying Alliance provides expertise in relation to all forms of bullying between children and young people.

It is a membership organisation, The Anti-Bullying Alliance aims to bring organisations (including schools and the charity sector) and individuals together, united against bullying, to share and learn from each other. 

Find out more - https://anti-bullyingalliance.org.uk/

Victim Support: (24/7 support) - https://www.victimsupport.org.uk
Victim Support operates a 24/7 support line and live chat service, every day of the year, offering specialist emotional and practical support to anyone who has been a victim or a witness. You don't have to report a crime to get help from Victim Support.
Telephone: 0808 16 89 111
Live chat: https://www.victimsupport.org.uk/help-and-support/get-help/support-near-you/live-chat
My Support Space: mysupportspace.org.uk/MoJ
Website: victimsupport.org.uk

SANEline - https://www.sane.org.uk/

SANEline provides specialist mental health support, guidance and information for anyone experiencing a mental health problem, you can call SANEline on 0300 304 7000 (4.30pm–10pm every day).

National Suicide Prevention Helpline UK - https://www.spuk.org.uk/national-suicide-prevention-helpline-uk/

The National Suicide Prevention Helpline offers a supportive listening service to anyone with thoughts of suicide. You can call the National Suicide Prevention Helpline UK on 0800 689 5652 (6pm to midnight every day).

Campaign Against Living Miserably (CALM) 

You can call the CALM on 0800 58 58 58 (5pm–midnight every day) if you are struggling and need to talk. Or if you prefer not to speak on the phone, you could try the CALM webchat service.

Shout - https://giveusashout.org/

Shout is a 24/7 text service for anyone in crisis and in need of immediate help. If you would prefer not to talk but want some mental health support, you could text SHOUT to 85258. 

Papyrus HOPELINEUK - https://www.papyrus-uk.org/papyrus-hopeline247/

If you're under 35 and struggling with suicidal feelings, or concerned about a young person who might be struggling, you can call Papyrus HOPELINEUK on 0800 068 4141 (24 hours, 7 days a week), email pat@papyrus-uk.org or text 07786 209 697.

Nightline - https://nightline.ac.uk/

If you're a student, you can look on the Nightline website to see if your university or college offers a night-time listening service. Nightline phone operators are all students too. You can find your universities listening service on - https://nightline.ac.uk/listening-services/

If you identify as gay, lesbian, bisexual or transgender, you can call Switchboard on 0300 330 0630 (10am–10pm every day), email chris@switchboard.lgbt or use their webchat service. Phone operators all identify as LGBT+.