7. Types of Discrimination
(i) Direct discrimination =
When a person treats another less favourably than they treat or would treat others because of a ‘protected characteristic’.
In a course a discussion on radicalisation involved shouting and threats between students of specific religion and those with a different or no religion. The School takes the action to move some of the students into another study group.
It does not take a similar approach to students who did not belong to the specific religion even though a range of students from different religion/non religions were involved. As result this treatment could be unlawful religious discrimination.
(ii) Discrimination by Association =
School treats a student less favourably because of the student’s association with a person who has a ‘protected characteristic’.
During Freshers’ Week, 2 students decide to sign up for a course in Religious Studies. One is chair of the LGBT Society and is gay. The other student is a friend and not gay. They are both told that the Religious Studies course has no more places available so they cannot join up. Some time later, one of them sees a group of four men sign up to the course.
In this case not only the gay student but also the friend could complain of discrimination. For the friend the discrimination would be on the basis of his association with his friend who is gay.
(iii) Discrimination by Perception =
A School treats a student less favourably because the education provider mistakenly thinks that the student has a ‘protected characteristic’.
A course coordinator at a university does not offer a placement at a Catholic primary school to a student on a teaching course because they think he is gay and are worried that the school will be ‘uncomfortable’ with a gay student.
Despite the fact that the student is not gay, this would still be direct discrimination because of sexual orientation.
(iv) Discrimination arising from a Disability =
- A School treats the disabled student unfavourably;
- Such treatment is because of something arising in consequence of the disabled student’s disability; and
- The School cannot show that this treatment is a proportionate means of achieving a legitimate aim unless the education provider does not know, and could not reasonably be expected to know, that the student has the disability.
A diabetic student is allowed time to inject insulin when needed during tutorials. However, he isn't allowed to do this during the course of an examination, which he then fails because his low blood sugar level makes him unwell.
The fact that a reasonable adjustment has been made in relation to tutorials is of no relevance to a claim for discrimination in respect of the examination.
(v) Indirect discrimination =
A School applies an apparently neutral provision, criterion or practice which puts or would put students sharing a protected characteristic at a particular disadvantage.
For indirect discrimination to take place, all four requirements must be met:
- the education provider applies (or would apply) the provision, criterion or practice equally to everyone within the relevant group, including a particular student, and
- the provision, criterion or practice puts, or would put, students who share the student’s protected characteristic at a particular disadvantage when compared with students who do not have that characteristic, and
- the provision, criterion or practice puts, or would put, the student at that disadvantage, and
- the education provider cannot show that the provision, criterion or practice is justified as a proportionate means of achieving a legitimate aim.
It is not enough that the provision, criterion or practice puts (or would put), at a particular disadvantage a group of students who share a protected characteristic. It must also have that effect (or be capable of having it) on the individual student concerned. So it is not enough for a student merely to establish that they are a member of the relevant group.
They must also show that they have personally suffered (or could suffer) the particular disadvantage as an individual.
(vi) Harassment =
When a person engages in unwanted conduct which is related to a relevant characteristic and has the purpose or the effect of creating an intimidating, hostile, degrading, humiliating or offensive environment.
Unwanted conduct covers a wide range of behaviour, including:
- spoken or written words or abuse imagery, graffiti;
- physical gestures, facial expressions, mimicry, jokes, pranks; and
- acts affecting a person’s surroundings or other physical behaviour.
In deciding whether unwanted conduct has a negative effect, consideration is given on how the conduct was regarded in terms of violating their dignity or creating an intimidating environment.
After a female student rejects sexual advances and unwanted touching by a male lecturer, the lecturer marks down her coursework, a key element of assessment for progressing onto the final year of the course. The student had, until the incident, achieved high marks for all aspects of assessment and had expected to progress easily to her final year. This could amount to less favourable treatment as a result of her rejecting the sexual advances of her lecturer and is likely to be unlawful sexual harassment.
a) During a film studies tutorial, the tutor speaks at great length to an Asian student about the Bollywood film festival she plans to attend this weekend. They have never discussed this genre of films before and it is not something the student has any knowledge about or particular interest in. While the student may find this a bit patronising and stereotypical, it is unlikely to amount to harassment.
b) If a politics lecturer presented views held by members of far right groups in a seminar in order to explain a position that some people hold, then it is likely that this would not be harassment even if some of the students were offended or found the topic uncomfortable.
Using a disclaimer stating that the content being discussed or presented if for the purpose of learning and does not represent the views of the institution.
(vii) Victimisation =
The Act prohibits victimisation. It is victimisation for an education provider to subject a student to a detriment because the student has done a ‘protected act’ or because the education provider believes that the student has done or may do a protected act in the future.
In his first year, a final year student with a hearing impairment was not provided with routine access to a palantypist for lectures. He made several complaints to the university and was eventually provided with palantypist support. The student applies for a postgraduate course at the university and at interview is questioned about the complaint and whether he expects he will need any other ‘special help’. The student is unsuccessful in gaining a place on the course.
This may be victimisation if he was able to show a link between him not gaining a place on the course and the questions about his complaint asked during the interview.