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Want to stay on the right side of the law? We support businesses and public authorities and help them to promote good practice.
 
 

Types of discrimination

Further & Higher Education

What you need to know

 
Types of discrimination in further & higher education

There can be different types of discrimination in further and higher education, and they don’t have to be intentional to be unlawful:

Direct discrimination

This is where a student is treated worse that others because of a protected ground (except disability. See Disability and discrimination)

Examples:

 

  • You reject a male applicant’s application to a childcare course because you 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.
  • You exclude a female  student because she is pregnant. This would be unlawful direct discrimination on the grounds of sex.
 

What is indirect discrimination?

Unfortunately there is not a single definition of indirect discrimination that applies across all of the discrimination laws so this makes it a little complicated to explain the concept. However a reasonable description of the concept and what it tries to do is as follows:

 

Indirect discrimination is where an organisation unjustifiably operates a rule or policy that looks the same for everyone but in effect disadvantages people from a particular protected group.

 

Examples:
 

  • A 45 year old man wishes to take up a degree course but is refused a place because places are reserved for 18 – 21 year olds.


While this practice applies to all people equally, people of a certain age group are at a particular disadvantage and if the practice cannot be objectively justified it could amount to indirect discrimination on grounds of age.
 

  • You do not permit men or women to wear headgear as part of your uniform policy and this policy applies to every student equally.


This could be a case of indirect religious and race discrimination, for example against Muslim women unless the policy can be objectively justified.

 

What is victimisation?

Victimisation is where a student has made a complaint of discrimination, in good faith or helped someone else with a complaint under the discrimination laws, and suffered as a result. Protection from victimisation is intended to ensure that people are not put off from complaining about discrimination out of fear of further adverse treatment.

Example:
 

  • A Muslim woman had made a complaint of indirect religious and racial discrimination because she was not allowed to wear a head scarf to college. At the beginning of the new college year she requested to do an extra “A” level but you refused permission.

 

If the reason for the refusal was that you were retaliating against her because she had brought a complaint of discrimination in the previous year, it would be victimisation and would be unlawful.

 

Disability-related discrimination

Direct discrimination and indirect discrimination are not terms for discrimination that are prohibited by the Special Educational Needs and Disability (Northern Ireland) Order 2005 (SENDO). However, SENDO has its own terms for discrimination; i.e. disability related discrimination and failure to comply with a duty to make reasonable adjustments. SENDO also prohibits harassment (although it does not use that word) and victimisation.

Disability-related discrimination is essentially a form of direct discrimination. It is very closely linked with the duty to make reasonable adjustments. Disability-related discrimination is much less likely to occur when the reasonable adjustment duty has been complied with. So, the focus and priority for you should be on complying with the reasonable adjustment duty.

 

What is the reasonable adjustment duty for disabled people?

In certain circumstances SENDO places a duty on you to make reasonable adjustments for those students or prospective students who are disabled. The duty arises where:
 

  • a provision, criterion or practice is applied by or on behalf of a college; or
  • any physical feature of premises occupied by a college;


places disabled students at a substantial disadvantage in comparison with students who are not disabled.

 

There are a number of things you need to remember about reasonable adjustments:

a. where the duty arises, you cannot justify a failure to make a reasonable adjustment.

b. reasonable adjustments have to be considered at every stage of the students journey through their education.

c. the duty is ‘reactive’ and requires you to have knowledge of the person’s disability and the fact that they will be placed at a substantial disadvantage compared to others who do not have the particular disability.

 

Examples:
 

  • You introduce a website to enable the students to keep in touch and up to date on news, events and the latest school activities. However, the website has embedded all of its text within graphics. This practice places students who have visual impairments at a particular disadvantage because they cannot change the font size or apply text-to-speech recognition software. Hence they cannot access the website.


If it is reasonable for you to change the website to remove the cause of this difficulty and to enable disabled students to use it, then you will be under a duty to make these changes. An unjustified failure to do so would be unlawful discrimination.
 

  • A female student who has Osteogenesis Imperfecta (brittle bones) and walks using a rollator wants to attend your college. The college’s buildings have narrow walkways. For her own safety, she asks if she could leave lectures five minutes before the end of lectures in order to miss the rush in the corridors. You consider that it would be reasonable for you to timetable lectures to ensure that the student is able to avoid crowded corridors.

If it would be reasonable for you to take these steps, then you will be under a duty to take them.
 

  • You built a ramp and install automatic doors at the entrance to make it easier for wheel chair users and other students with mobility problems to enter and exit the building.


This is likely to be a reasonable adjustment to a physical feature of premises.


There is also a duty on Colleges to provide auxiliary aids and services as a reasonable adjustment. However it would not be reasonable to expect you to provide an aid or service where the cost had been met already by another source, for example a Disabled Students Allowance.

 

Harassment

Harassment is where a person behaves in a way, on grounds of sex, sexual orientation, race, religious belief and political opinion, age and disability, which violates a student’s dignity or creates an intimidating, hostile, degrading, humiliating or offensive environment.

Where the harassment was carried out by an employee of the College, such as a teacher, caretaker or kitchen assistant the student can take a complaint under one of the equality laws. 

In general you have legal duties to students in relation to harassment and have a duty to protect them from harassment.

Examples:
 

  • A student who is from Poland and speaks with a strong polish accent is imitated and mocked by the lecturer and made fun off in front of the rest of the class. The lecturer also makes comments such as “Polish people are taking our jobs.”
 
 
 
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