Discrimination

Discrimination

Discrimination means treating someone less favourably because of a ‘protected characteristic’ as defined by the Equality Act 2010. Types of discrimination can include:

Direct discrimination – this can occur when a decision, behaviour, rule or policy directly treats someone less favourably or disadvantages someone because of their particular characteristic.

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 for example, a gay staff member cannot claim direct discrimination on grounds of sexual orientation unless they can show that a heterosexual or bisexual staff member would not be receiving the same treatment. A staff member 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 as:

• 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 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.

It is not direct discrimination against a male staff member to offer a female staff member 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 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 staff member with carpel tunnel syndrome has a scribe to take notes during lectures. Another staff member 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. 

- Indirect discrimination - can occur where a rule or policy that applies to everyone equally but disadvantages someone (or a group) with a particular protected characteristic. However, it may not be discrimination if it can be shown to be a proportionate means of achieving a legitimate aim.

Indirect discrimination occurs when you apply a provision, criteria or practice in the same way to everyone or a particular group of people, but this has the effect of putting people sharing a protected characteristic at a particular disadvantage. It doesn’t matter that you did not intend to disadvantage the people with a particular protected characteristic in this way. What does matter is whether your action does or would disadvantage such people compared with people 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 people 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
• 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.

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 people, including a particular person with a protected characteristic. and
• The provision, criterion or practice puts or would put people sharing a protected characteristic at a particular disadvantage compared to relevant people who do not share that characteristic, and
• The provision, criteria, practice or rule puts or would put the particular person or group at that disadvantage, and
• You cannot show that the provision, criteria or practice is justified as a ‘proportionate means of achieving a legitimate aim’.

Discrimination by association - is direct discrimination against someone because they associate with another person who has a protected characteristic.

This might occur when you treat a staff member less favourably because their sibling, parent, carer or friend has a protected characteristic.

Discrimination by perception - is direct discrimination against a person because of an assumption that the person has a particular protected characteristic (this can happen even if the person does not have or share that protected characteristic).

Discrimination because of pregnancy and maternity

It is discrimination where you treat a woman 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.

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.

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 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.

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What should I do if I have experienced discrimination?

IDS does not tolerate discrimination. Discriminatory behaviours go against our Respect at IDS Policy and are unlawful under the Equality Act 2010.

Think 

• Are you in immediate danger? If you are in immediate danger or seriously injured, you can contact the emergency services on 999 (or 112 from a mobile phone).
• Find a safe space.  If an incident has just happened try and find somewhere you feel safe.
• What is discrimination? It might be useful to think about what constitues unlawful discrimination.

Report

• Report + Support. Staff, visitors, partners and third party contractors can report an incident using IDS's Report + Support platform. You can choose to do this anonymously or give your contact details for a direct response and support. If you're a staff member at IDS you can choose to talk to an advisor they will be able to talk through the options and support available to you, in confidence.
• Resolution and Grievance Procedure. If you are a staff member and choose to make a formal complaint to the IDS you can also do this directly by contacting one of IDS's HR Advisors - at that stage, you will receive support and guidance about IDS's Resolution and Grievance procedures and what to expect.
• IDS's Complaints Procedure. If you are a student, partner, or third party contractor you can also do this directly using IDS's Complaints Procedure.

Get Support

• Find out what support is available if you think you have been discriminated against.
• Talk. Talk to your manager or cluster leader, a trusted colleague, or a friend.

Mental Health and Wellbeing

• Find out more on the support available for mental health and wellbeing
• Take care of yourself. It’s important that you take care of yourself. If you’ve heard something distressing or if something is troubling you, IDS's Employee Assistance Programme (EAP) offers confidential help. You can also speak to one of IDS's trained Mental Health First Aiders confidentially.