Student scholarships and bursaries: lawful positive action or unlawful discrimination?

In 2009, following a number of queries from higher education institutions regarding the legality and appropriateness of bursary schemes, ECU issued guidance on the application of equality law to the provision of bursaries to under-represented groups. Many such bursaries were offered as positive action measures. The guidance identified the distinction between lawful positive action and unlawful positive discrimination.

Parts of the Equality Act 2010 came into force on 1 October 2010, including section 158 on voluntary positive action. In effect, this harmonised the application of positive action across the different protected characteristics (as defined by the act). Previous positive action provisions applied to different protected characteristics in different ways, and in some cases were specific about the types of action that were permitted. ECU's previous guidance has therefore been removed.

Due to the harmonisation of legislation, providing a bursary for a group of people with a specific protected characteristic to reduce their under-representation or to meet a specific need would constitute lawful positive action as long as providing a bursary is 'proportionate'.

The extent to which providing a bursary is a lawful proportionate positive action measure (which may result in people not having the relevant characteristic being treated less favourably) will depend, among other things, on the seriousness of the relevant disadvantage, the extremity of need or under-representation, and the availability of other means of countering the under-representation or disadvantage.

Institutions will need to be certain that providing financial support, as opposed to any other support, will address the root problem causing disadvantage or under-representation.

This applies to England, Wales and Scotland.