How do we demonstrate 'due regard'?

Higher education institutions (HEIs), in the exercise of their functions, must have due regard to the need to:

• eliminate discrimination, harassment and victimisation and other conduct prohibited by the Equality Act 2010
• advance equality of opportunity between people from different groups - this involves considering the need to:
• remove or minimise disadvantages suffered by people due to their protected characteristics
• meet the needs of people with protected characteristics
• encourage people with protected characteristics to participate in public life or in other activities where their participation is low
• foster good relations between people from different groups - this involves tackling prejudice and promoting understanding between people from different groups

Due regard comprises two linked elements, proportionality and relevance. ECU recommends that to demonstrate due regard as employers, education and service providers, institutions consider the relevance of the three aims of the equality duty when:

• developing, evaluating and reviewing policies (including, for example, those relating to recruitment and selection)
• designing, delivering and evaluating services, including education provisions
• commissioning and procuring services from others

To consider proportionality, HEIs should determine:

• the relevance of the policy to protected groups
• the relevance of the policy to the public sector equality duty
• any concern previously raised about policy or practice
• any information indicating an adverse impact on a protected group

To support this HEIs can develop mechanisms to help identify where a policy or practice:

• is likely to result in discrimination against a protected group
• needs development to ensure that it adequately caters for the requirements of different protected groups
• positively contributes to the participation of underrepresented groups in the HEI's activities

There is no prescribed process to achieve this, though mechanisms developed could look to replicate, extend or replace current equality impact assessment tools. HEIs can be flexible in their approach as different types of policies and practices may require different approaches.

For example, see the ECU guidance on equality in admissions and equality in restructuring and redundancy:

• Equality in admissions: Equality impact assessments in higher education
• Equality in restructuring and redundancy: Equality impact assessments in higher education

Where a particular policy or practice is found to have a discriminatory impact on a protected group, HEIs can explore alternative policies or practices or justify their actions within the constraints of the law. ECU recommends that HEIs record and justify actions and decisions taken to demonstrate due regard. Justification will be needed if a legal challenge is made.

To further demonstrate due regard, ECU recommends that HEIs involve staff and students in various processes, for example when:

• assessing the equality impacts of the HEI's policies and practices
• considering and designing actions and initiatives relating to the public sector equality duty 

Involving staff and students can further aid institutions in prioritising the relevance and understanding of the impact of the actions they take to meet the public sector equality duty, as well as promoting an inclusive and responsive culture. In doing so, institutions will need to consider a number of contextual factors, such as accessibility, location and timing, to maximise engagement.

ECU and the Higher Education Academy have produced guidance on the range of ways HEIs can engage with disabled students:

• Strategic approaches to disabled student engagement