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Advancing equality and diversity in universities and colleges


Home Guidance and resources Equality legislation

Equality legislation

The legal requirements for equality and diversity in universities and colleges in England, Northern Ireland, Scotland and Wales.

In England, Scotland and Wales, the Equality Act 2010 brought together and harmonised equality legislation.

Legislation in Northern Ireland is different and is principally from Section 75 of the Northern Ireland Act 1998.

Equality legislation across the UK protects staff and students with the following protected characteristics:

Age >

Age is defined in the Equality Act 2010 by reference to a person’s age group.

Retirement

On the 6 April 2011 there was a change to the law relating to retirement. The effect of this change is that in most cases workers can now retire when they are ready, rather than when their employer decides. It is direct age discrimination to require or persuade a worker to retire because of their age unless you can objectively justify doing so.

In most circumstances, it will not be objectively justifiable for an institution to set their own retirement age. To objectively justify doing so, the institution would need to be able to produce convincing evidence to show, in relation to the particular job:

  • that they are trying to achieve a legitimate aim
  • that the policy of setting a retirement age is a proportionate way of achieving that aim, and the actual age chosen for retirement is also proportionate

Proving that a retirement decision is a proportionate means of achieving a legitimate aim will be difficult to demonstrate in many situations, and it is unlikely that a retirement age would be objectively justifiable in the higher education sector or Scotland’s further education sector.

ECU and Oxford Brookes University (2011) Managing flexible retirement and extended working lives

Benefits based on length of service

This provision (schedule 9, paragraph 10) is designed to ensure that employers do not have to justify differences in pay and benefits that have arisen from service of up to five years. An employer can make awards on the basis of five years or more service, if it reasonably believes this fulfils a business need (for example, by encouraging loyalty or motivation, or rewarding the experience of staff).

Disability >

Under the Equality Act 2010, a person has a disability 'if they have a physical or mental impairment, and the impairment has a substantial and long-term adverse effect on his or her ability to carry out normal day-to-day activities'.

'Substantial' is defined by the Act as 'more than minor or trivial'.

An impairment is considered to have a long-term effect if:

  • it has lasted for at least 12 months
  • it is likely to last for at least 12 months, or
  • it is likely to last for the rest of the life of the person

Whether a person is disabled is generally determined by the effect the physical or mental impairment has on their ability to carry out normal day-to-day activities (the exception to this is people with severe disfigurement). Normal day-to-day activities are not defined in the Act, but in general they are things people do on a regular or daily basis, for example eating, washing, walking, reading, writing or having a conversation.

People who have had a disability in the past are also protected against discrimination, harassment and victimisation. This may be particularly relevant for people with fluctuating and/or reoccurring impairments.

The Special Educational Needs and Disability (Northern Ireland) Order 2005 (SENDO) and the Disability Discrimination (Northern Ireland) Order 2006 prohibit discrimination and harassment for disabled people in Northern Ireland.

Reasonable adjustments

The Equality Act 2010 places a duty upon higher education institutions to make reasonable adjustments for staff, students and service users in relation to:

  • provisions, criteria or practices
  • physical features
  • auxiliary aids

These adjustments apply where a disabled person is placed at a substantial disadvantage in comparison to non-disabled people. It is important to note that an institution can treat a disabled person favourably compared to a non-disabled person, and this would not amount to direct discrimination of a non-disabled person.

Discrimination arising from disability

In addition to direct and indirect discrimination, people with a disability are also protected from discrimination arising from disability. This can occur when a disabled person is treated unfavourably because of something connected to their impairment and the treatment cannot be justified.

In Northern Ireland disability-related discrimination has not been replaced by discrimination arising from disability as defined by the Equality Act 2010.

Example:

A staff member takes a number of days off work for reasons arising from their impairment (for example ME). The institution does not have a disability absence/leave policy and therefore records all staff absence, whatever the reason, in one system.

The staff member is then disciplined for their high absence record, without the institution taking into account the disability-related absence/leave.

Gender reassignment >

This protects trans people who propose to undergo, are undergoing, or have undergone a process (or part of a process) of having their sex reassigned. A person does not have to be under medical supervision to have the protected characteristic of gender reassignment.

The Sex Discrimination (Gender Reassignment) Regulations (Northern Ireland) 1999 amended the Sex Discrimination (Northern Ireland) Order 1976 and prohibits discrimination and harassment on the grounds of gender reassignment in employment and vocational education.

Gender recognition

The Gender Recognition Act 2004 allows transsexual people to apply to the gender recognition panel for legal recognition of their acquired gender. Applicants who meet the requirements of the Act will be issued with a gender recognition certificate.

Marriage or civil partnership >

Protection afforded in the Equality Act 2010 to marriage and civil partnership only protects people who are married or in a civil partnership from discrimination. It does not protect people who are single, divorced, widowed or have dissolved their civil partnerships.

Protection is only afforded in employment and not in education or the provision of goods and services.

In Northern Ireland, the Sex Discrimination (Northern Ireland) Order 1976 prohibits discrimination of married people in employment. In addition, Section 75 of the Northern Ireland Act 1998 places Northern Irish public authorities, including higher education institutions, under a duty to have due regard to the need to promote equality of opportunity between people of different marital status. Therefore both staff and students are protected.

Pregnancy and maternity >

Pregnancy and maternity-related discrimination can occur outside of the workplace (for example in education) if a woman is treated unfavourably because:

  • of her pregnancy
  • she has given birth (within the past 26 weeks) and, in particular, because she is breastfeeding

Pregnancy and maternity-related discrimination can occur in employment if a woman is treated unfavourably because:

  • of her pregnancy
  • of pregnancy-related illness
  • she is on compulsory maternity leave (2 weeks or 4 weeks if she is working in a factory)
  • she is exercising her right to take ordinary or additional maternity leave

The Equality Act 2010 explicitly protects students from less favourable treatment because of breastfeeding.

In Northern Ireland the Sex Discrimination (Northern Ireland) Order 1976 prohibits discrimination on the grounds of pregnancy and maternity leave in employment and vocational education. There is no explicit protection from less favourable treatment for women who are breastfeeding in Northern Ireland, but similar protection may be afforded through the SDO (1976).

Race >

The definition of race includes:

  • colour
  • nationality
  • ethnic origins
  • national origins

Protection on the grounds of nationality is subject to compliance with immigration rules.

In Northern Ireland the Race Relations (Northern Ireland) Order 1997 prohibits discrimination on the grounds of race, colour, ethnic or national origins and nationality, including belonging to the Irish Traveller community.

Racial hatred legislation

The Public Order Act 1986 contains specific criminal offences related to the intention of stirring up racial hatred or if someone is likely to stir up racial hatred. This includes threatening, abusive or insulting words or behaviour, materials and public performances.

Higher education institutions will need to be mindful of this in relation to their role in promoting academic freedom, as reflected in the Education Reform Act 1988, and freedom of speech, as obliged by the Education Act (No.2) 1986.

In Northern Ireland the Public Order (Northern Ireland) Order 1987 contains specific offences related to acts intended or likely to stir up racial hatred or arouse fear. This includes threatening, abusive or insulting words or behaviour and materials.

Higher education institutions will need to be mindful of this in relation to their role in promoting academic freedom, as reflected in the Education Reform Act 1988, and freedom of speech, as obliged by the Education Act (No.2) 1986.

Sex >

Sex is a protected characteristic under the Equality Act 2010. It protects men (being a man) and women (being a woman) from discrimination,

In Northern Ireland the Sex Discrimination (Northern Ireland) Order 1976 prohibits discrimination and harassment on the grounds of sex.

Equal pay legislation

The Equality Act 2010 gives women and men a right to equal pay for equal work.

The Equal Pay Act (Northern Ireland) 1970 (as amended) prohibits sex discrimination in relation to pay and terms of employment.

Sexual orientation >

Sexual orientation means a person's sexual orientation towards people of the same sex, opposite sex or both. Lesbian, gay and bisexual staff and students are protected under the Equality Act.

In Northern Ireland the Employment Equality (Sexual Orientation) Regulations (Northern Ireland) 2003 prohibit discrimination and harassment in both employment and towards students in higher education on the grounds of sexual orientation.

Religion and belief >

The definitions of religion and belief are:

  • religion: any religion or reference to religion, including a reference to a lack of religion
  • belief: any religious or philosophical belief or reference to belief, including a reference to a lack of belief

Religion or belief should be taken to mean the full diversity of religious and belief affiliations within the UK, including non-religious and philosophical beliefs such as atheism, agnosticism and humanism.

In Northern Ireland Section 75 of the Northern Ireland Act 1998 places Northern Irish public authorities, including higher education institutions, under a duty to have due regard to the need to promote equality of opportunity between people of different religious belief and political opinion.

Religious hatred legislation

The Racial and Religious Hatred Act 2006 amended the Public Order Act 1986 and made it an offence to stir up hatred and protects people from harm for their religion or belief or lack of religion or belief.

Higher education institutions will need to be mindful of this in relation to their role in promoting academic freedom, as reflected in the Education Reform Act 1988, and freedom of speech, as obliged by the Education Act (No.2) 1986.

In Northern Ireland public authorities are also required to have regard to the desirability of promoting good relations between people of different religious belief and political opinion.