What is discrimination?
Discrimination is when someone is treated less fairly because of who they are or because of a protected characteristic:
- Age
- Disability
- Sex
- Gender reassignment
- Race
- Religion or belief
- Sexual orientation.
- Marriage or civil partnership
- Pregnancy or maternity
Direct discrimination
Treating someone less favourably because of who they are is a form of direct discrimination however you don't have to have a protected characteristic to be discriminated against. If someone thinks you have a characteristic and treats you less favourably, then this is a form of direct discrimination by perception.
Treating someone less favourably because of who they are is a form of direct discrimination however you don't have to have a protected characteristic to be discriminated against. If someone thinks you have a characteristic and treats you less favourably, then this is a form of direct discrimination by perception.
Indirect discrimination
When a provision, criteria or practice is applied in the same way for everyone, but this has the effect of putting people sharing a protected characteristic at a disadvantage. It doesn’t matter if there was no intention to disadvantage that group. What matters is whether that action does disadvantage that group in some way. An example of this could be a rules on appearance which might indirectly discriminate against individuals or groups of a particular religion, belief or gender.
‘Provision’, ‘criterion’ or ‘practice’ are not defined in the Act but can be interpreted widely and include:
When a provision, criteria or practice is applied in the same way for everyone, but this has the effect of putting people sharing a protected characteristic at a disadvantage. It doesn’t matter if there was no intention to disadvantage that group. What matters is whether that action does disadvantage that group in some way. An example of this could be a rules on appearance which might indirectly discriminate against individuals or groups of a particular religion, belief or gender.
‘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.
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.
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 or staff member 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.
Examples of what is and is not direct discrimination:
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.
Discrimination based on association
Direct discrimination also occurs when you treat a student / staff member less favourably because of their association with another person who has a protected characteristic (other than pregnancy and maternity).
Discrimination because of pregnancy and maternity
It is discrimination to treat a woman (including a female staff member or 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 staff member or 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, criteria or practice in the same way for all students or a particular student group, 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.