Equality Act 2010:
implications for students’ unions
Contact
Chris Brill, senior policy adviser, ECU
info@ecu.ac.uk
Robert Holland, research and policy officer (liberation), NUS
robert.holland@nus.org.uk
Mandeep Rupra-Daine, equality and diversity consultant and chair of diversity action working
group, NUS
mandeep@nus.org.uk
Contents_Toc320629336
Introduction ......................................................................................................................................... 2
What is the Equality Act? ..................................................................................................................... 2
Who is protected by the Equality Act? ................................................................................................ 2
What action is unlawful under the Equality Act? ................................................................................ 3
Direct discrimination ........................................................................................................................ 3
Indirect discrimination ..................................................................................................................... 4
Discrimination arising from disability .............................................................................................. 4
Failure to make reasonable adjustments ........................................................................................ 5
Harassment ...................................................................................................................................... 5
Victimisation .................................................................................................................................... 5
Who is responsible for unlawful conduct under the Equality Act? ..................................................... 6
The provision of services .................................................................................................................. 6
Employment ..................................................................................................................................... 6
Clubs, societies and associations ..................................................................................................... 7
Does the relationship between the students’ union and the institution affect a students’ union’s
responsibility under the Act? ............................................................................................................... 9
What else can be done under the Act to challenge inequalities? ....................................................... 9
Public sector equality duty............................................................................................................... 9
Positive action ................................................................................................................................ 10
What work are organisations in HE doing around the Equality Act? ................................................ 11
Disclaimer ........................................................................................................................................... 11
Introduction
This briefing summarises some key areas of the Equality Act 2010 and their implications for
students’ unions in both further and higher education. It will be useful for students’ union staff at
all levels as well as sabbatical and non-sabbatical officers. It will be particularly relevant for those
with responsibility for human resources, delivering student services and activities as well as those
involved in National Union of Students (NUS) liberation campaigns.
This briefing replaces the previous ECU briefing Equality Bill: implications for students’ unions.
What is the Equality Act?
The Equality Act 2010 is the key piece of equality legislation in England, Scotland and Wales
replacing much of the previous equality legislation.
Students’ unions have specific responsibilities under the Act, and have a role to support their
partner institutions in meeting their duties under the legislation.
The Act provides protection from unlawful discrimination to both staff and students in further and
higher education. Positive and proactive elements of previous equality legislation have also been
extended. The Act can be found online at www.legislation.gov.uk/ukpga/2010/15/contents
The vast majority of the Act does not apply to institutions and students in Northern Ireland. For an
overview of anti-discrimination law in Northern Ireland, with illustrative case studies, please see
ECU’s briefing on Anti-discrimination law in Northern Ireland www.ecu.ac.uk/publications/antidiscrimination-law-in-northern-ireland
Who is protected by the Equality Act?
All staff and students in the higher and further education sectors are covered by the Act.
Specifically, the Act protects staff and students based on their ‘protected characteristics.’ These
are:
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age
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disability
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gender reassignment
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marriage and civil partnership (in the context of employment only)
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pregnancy and maternity
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race (including colour, nationality and ethnic or national origins)
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religion or belief (including lack of belief)
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sex
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sexual orientation
Legal definitions of each protected characteristic can be found in section 4 of the Act. The
definition of religion or belief continues to be developed through case law. For up-to-date
information on the current legal definition of religion or belief, see www.ecu.ac.uk/law/r-and-bcase-law
What action is unlawful under the Equality Act?
The Act outlines prohibited conduct, which includes discrimination, victimisation and harassment.
The different types of prohibited conduct are detailed below, with examples.
Direct discrimination
A person discriminates against another if, because of a protected characteristic, they treat them
less favourably than they would treat others. Direct discrimination may occur if, for example:
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a students’ union decides not to interview a Muslim applicant for a job because it assumes, on
the basis of their religion, that he or she will not be prepared to work in a bar
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an employer shortlists only male job applicants for an interview because they assume women
will not ‘fit in’
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an education provider refuses to let a student go on a residential trip because they are a
wheelchair-user
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an employer doesn’t offer the job to the best candidate because they are ‘too old’
Direct discrimination also covers association and perception (except for marriage, civil partnership,
and pregnancy and maternity, although incidents relating to these characteristics may be
considered discrimination because of sexual orientation or sex).
Discrimination based on association can occur because of association with another person who
has a protected characteristic such as a friend, partner, sibling or child. For example discrimination
by association might occur if:
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a student whose partner has a mental health condition is refused access to a society event
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an employee is spurned by their colleagues because their partner has undergone gender
reassignment
Discrimination based on perception can occur if, for example:
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a member of the students’ union reception staff refuses to serve a customer because they
believe the customer to be gay, whether they are gay or not
Direct discrimination generally cannot be justified. There are some limited exceptions to this.
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It is not unlawful direct discrimination to treat a disabled student more favourably than a nondisabled student because of a disability, for example colleges offering a bursary for disabled
students only.
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In some cases age discrimination can be justified if it is ‘a proportionate means of meeting a
legitimate aim’, for example, recognising that some requirements of mature students are
different to students under 21, a students’ union organises an event for mature students to
discuss their issues in higher education and limits attendance to students aged 21 and over.
Indirect discrimination
Indirect discrimination occurs when a ‘provision, criterion or practice’ appears to be neutral, but in
its impact particularly disadvantages people with a protected characteristic.
Provisions, criteria and practices are not defined in the Act. For students’ unions, these are likely
to include:
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the way the union operates and offers services and facilities
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formal and informal policies, decisions and rules (including, for example, requirements to
stand for election)
Indirect discrimination may occur in a number of ways.
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In order to stand for election to an employed post within a union, candidates must attend a
series of debates held in the evening. This is likely to discriminate against women, who are
more likely to be primary carers of children.
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A students’ union shop requiring all staff to work at least one Saturday a month could
indirectly discriminate against observant Jewish members of staff.
Indirect discrimination can be justified if the provision, criterion or practice is shown to be a
‘proportionate way of achieving a legitimate aim’. In the context of further and higher education
this may include ensuring the health and safety and welfare of students as well as maintaining
academic and other standards. For more information, refer to guidance from the Equality and
Human Rights Commission (EHRC) (see the ‘What work are organisations in higher education
doing around the Equality Act?’ section of this briefing).
Discrimination arising from disability
The Equality Act 2010 introduced a new form of protection for disabled people. It protects
disabled people from being treated unfavourably because of something connected to their
disability. For this to occur, the employer, education provider or service provider, must know, or
could reasonably be expected to know, that the person is disabled.
Discrimination arising from disability can occur if, for example, a member of staff is dismissed
because of poor attendance. The absence is on account of treatment that the employee is
undergoing in order to manage a mental health condition. This may be discrimination arising from
a disability, unless the employer can demonstrate the dismissal was justified or they did not know
about the employee’s mental health condition.
Failure to make reasonable adjustments
Students’ unions have a duty to make reasonable adjustments to ensure they accommodate
disabled students in all aspects of union life. The duty also applies to staff. Reasonable
adjustments are changes made to help disabled people overcome disadvantage. Changes can be
made in three different ways:
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changing the way things are done, for example, providing ballot papers in alternative formats
to allow all students to have the opportunity to cast their vote
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making changes to the physical environment, such as providing inclusive access to a union
building
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providing auxiliary aids and services, such as providing a British Sign Language interpreter for a
deaf student attending a students’ union event or assistive software for an employee with a
visual impairment
This duty is anticipatory; students’ unions have to think ahead, plan and act in advance, as far as
they reasonably can, to meet the requirements of disabled customers and students.
Harassment
The Act outlines three types of harassment:
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unwanted conduct which creates an intimidating, hostile, degrading, humiliating or offensive
environment, or violates a person’s dignity (this applies to all the protected characteristics
apart from pregnancy and maternity, and marriage and civil partnership)
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unwanted conduct of a sexual nature (sexual harassment)
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treating a person less favourably than another because they have either submitted to, or did
not submit to, sexual harassment or harassment related to sex or gender reassignment
Harassment may occur if, for example, a member of union staff makes jokes about or comments
on a student’s sexuality in a way that makes the student, other students or their co-workers feel
uncomfortable.
Courts and tribunals will continue to be required to balance competing rights on the facts of a
particular case; this includes consideration of the value of freedom of expression (as set out in
article 10 of the European Convention on Human Rights) and of academic freedom. The
ECU/Universities UK/GuildHE publication Promoting good campus relations: an institutional
imperative (www.ecu.ac.uk/publications/promoting-good-campus-relations-update) provides
guidelines and case studies on how institutions can manage these competing rights.
Victimisation
Victimisation takes place where one person treats another less favourably because he or she has
carried out a ‘protected act’ (ie asserted a right in line with the Act or helped someone else to do
so). Victimisation can also occur when one person treats another less favourably because they are
suspected to have asserted a right or of intending to do so.
Victimisation may occur if, for example:
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a student alleges that they have encountered racism from a students’ union staff member, and
as a result they are ignored by other staff members
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a senior member of staff starts to behave in a hostile manner to another member of staff after
they supported their friend in submitting a formal complaint against the senior manager for
sexist behaviour
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an employer brands an employee as a ‘troublemaker’ because they raised a lack of job-share
opportunities as being potentially discriminatory against working mothers
Who is responsible for unlawful conduct under the Equality Act?
Employers have a responsibility to ensure that their employees do not behave unlawfully and
should take all reasonable steps to prevent unlawful acts from happening. Employees can also be
personally liable for any unlawful conduct.
How is the Equality Act relevant to students’ unions?
Most students’ unions facilitate student activities (clubs and societies, volunteering opportunities,
sport); offer support (through advice centres, helplines, job shops); and provide venues to bring
their members together. The Act therefore has far-reaching implications for students’ unions.
The provision of services
Many students’ unions provide services, goods and facilities through students’ union bars, shops,
cafés, gyms, restaurants, printing and binding, excursions, travel services, and many other forms of
retail or entertainment.
The Act protects customers from unlawful discrimination when requesting a service and during the
course of being provided with a service. This does not currently apply to the protected
characteristics of age or marriage and civil partnership.
In addition students’ unions must make anticipatory reasonable adjustments to allow for disabled
people to access the service. For example, a students’ union ensures that advice on welfare and
wellbeing is available in alternative formats for disabled students.
Employment
Many students’ unions recruit staff to work in services, such as those described above as well as
those that support students.
The Act protects employees and people seeking work from unlawful discrimination from the
employer. Sabbatical officers are likely to be covered by these provisions. The NUS has produced
guidance on the employment status of sabbatical officers which includes reference to the Equality
Act, see Guidance on the employment status of sabbatical officers
www.nusconnect.org.uk/resources/governance/Guidance-on-the-employment-status-ofsabbatical-officers
The protection applies to the arrangements made to fill a job, the recruitment process, and
anything done during and after a person’s employment, such as providing references.
For example, if a students’ union does not recruit a staff member for a campaigning role because
they are in their 50s and they are considered to be too old to identify with the student population,
this would be deemed unlawful discrimination unless objective justification can be shown.
The Act also means that employers must make reasonable adjustments for disabled employees
and applicants.
For example, if an applicant for a job needs extra time for an assessment task as a result of a
disability, an employer may be discriminating if they refuse to grant the extra time.
The Act also introduced a new provision which makes it unlawful for an employer to ask about a
job applicant’s health either before offering them work or including them in a shortlist, apart from
in specific circumstances.
An employer does not contravene the Act merely by asking about the applicant’s health, though
the way in which the employer uses any disclosed information could be a contravention of a
relevant disability provision.
Employers will continue to be able to, and should, ask all applicants whether they require any
reasonable adjustments or support during the recruitment and interview process. Employers will
also continue to be able to ask monitoring questions establishing whether there are disabled
applicants applying for job positions.
The Act also makes employers liable in the case of harassment of its employees by third parties
such as students purchasing goods from students’ union bars and shops or suppliers. For a union
to be liable, they must know that an employee has been harassed on two previous occasions by a
third party, and have failed to take reasonable steps to prevent further cases of harassment.
The EHRC Employment Codes of Practice outline that reasonable steps may include:
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having a policy on harassment
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notifying third parties that harassment of employees is unlawful and will not be tolerated, for
example by the display of a public notice
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inclusion of a term in all contracts with third parties notifying them of the employer’s policy on
harassment and requiring them to adhere to it
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encouraging employees to report any acts of harassment by third parties to enable the
employer to support the employee and take appropriate action
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taking action on every complaint of harassment by a third party
An example of third party harassment may be if a bar manager does nothing when students using
the union bar make constant comments and unwanted jokes about a bartender’s sexuality.
Clubs, societies and associations
Students’ clubs, societies and associations are central to the personal and social development of
students and are part of the educational purpose of students’ unions.
The Act protects potential members, guests and potential guests from unlawful discrimination.
This is in line with the equal opportunities statements that exist in most students’ unions. The Act
applies to both students’ unions and individual student societies which have 25 or more members.
An association cannot, because of a protected characteristic (not including marriage and civil
partnership):
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refuse membership to a potential member or grant it on less favourable terms (eg if a club or
society refuses membership to a student because they seem ‘too old’)
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refuse an existing member or guest access to a benefit, or deprive him or her of membership
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refuse to invite a person as a guest, or invite that person on certain conditions which the
association would not apply to other guests
Students’ unions will still be able to form societies benefiting groups of people sharing a particular
protected characteristic, for example, a women’s network, a lesbian, gay, bisexual and
transgender (LGBT) group or a religious group.
It is not unlawful for an association to treat a pregnant woman differently if the association
reasonably believes that to do otherwise would create a risk to her health or safety. For example,
a sailing society could ask the relevant activities manager to conduct a risk assessment with a
pregnant woman to ensure her safety is not compromised during a particular activity.
Organisations relating to religion and belief
Religion-based students’ unions and student religion or belief societies will still be able to restrict
membership, participation, services provision and premise use to people of a particular sexual
orientation if this is necessary to comply with doctrine or to avoid conflict with strongly held
religious convictions. This exemption may, in some specific circumstances, allow societies to treat
LGBT members differently. There is currently little case law in this area and so the scope of the
exemptions remains unclear.
Please see ECU’s religion and belief webpages for the latest developments
www.ecu.ac.uk/subjects/religion-and-belief
Charities
Due to their work in advancing education, all higher education students’ unions have charitable
status, whether they are incorporated or not. In addition some of the larger further education
students’ unions have also registered as charities.
As a result of the 2006 Charities Act, students’ unions in England and Wales with an annual
turnover of more than £100,000 are required to register with the Charity Commission and to
comply with their regulations and reporting requirements. Students’ unions in Scotland are
subject to regulation from the Office of the Scottish Charity Regulator.
NUS has worked with the Charity Commission on a model that outlines that the beneficiaries of
the charity are the students of the college or university. Ultimately the trustees of the charity are
responsible and accountable for discharging the duties under the Equality Act. Newly updated
guidance for trustees is available on the Charity Commission’s website.
www.charitycommission.gov.uk/charity_requirements_guidance/charity_governance/good_governance/charit
ies_equality.aspx
In addition NUS has produced guidance on governance, available at
www.nusconnect.org.uk/goodgovernance
Through the Equality Act, charities are still able to:
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provide benefits restricted to people who share a protected characteristic if this is in line with
their charitable instrument and if it is objectively justified or to prevent or compensate for
disadvantage – for example, a students’ union introduces a mentoring scheme for black
students to try to address an attainment gap between them and their white peers
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make acceptance of a religion or belief a condition of membership, if they have done so since
before 18 May 2005
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run single-sex activities for certain specified purposes – for example, the purpose of promoting
or supporting a charity (which would cover some events such as women-only fun-runs) or
organising certain single-sex sporting events
Charities must not restrict employment, contract work or vocational training to people who share
a protected characteristic.
Does the relationship between the students’ union and the
institution affect a students’ union’s responsibility under the
Act?
The impact of the Act varies to some extent according to whether or not the union is clearly
separate and independent of its parent institution.
A few students’ unions and societies are constitutionally and legally an integral part of the
institution or college. In these circumstances, a union or society member bringing a case of
discrimination may choose to do so against the institution, although the union’s officers,
employees and trustees could also be liable in a personal capacity.
Where the students’ union is a separate entity independent from the parent institution or college
(and they will increasingly become so under the changes brought about by the Charities Act 2006),
the effect of the Equality Act is to extend the principle of non-discrimination to their members. In
general, any legal cases would be taken against the students’ union directly. The Act applies to
both students’ unions and individual student societies provided they have 25 or more members.
What else can be done under the Act to challenge inequalities?
Within the further and higher education sectors, long-standing inequalities exist, for example
underrepresentation of specific groups within different occupations and pay differences. The Act
therefore contains a number of positive measures to challenge any such inequalities.
Public sector equality duty
The Act introduced a public sector equality duty on public bodies including further and higher
education institutions and the further and higher education funding bodies. Higher education
institutions also need to ensure the ‘fair’ operation of the students’ union under the Education Act
1994.
Students’ unions are not public bodies and therefore not subject to the public sector equality duty.
However, students’ unions working with their partner institutions can help to bring about change.
The duty requires further and higher education institutions to have due regard to the need to:
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eliminate discrimination, harassment and victimisation
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advance equality of opportunity between people who share a protected characteristic and
people who do not share it
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foster good relations between people who share a protected characteristic and people who do
not share it
The public sector equality duty covers the protected characteristics of age, disability, gender
reassignment, pregnancy and maternity, race, religion or belief (including lack of belief), sex and
sexual orientation. It also applies to marriage and civil partnership, but only for the requirement to
have due regard to the need to eliminate unlawful discrimination in employment.
Potential impacts of the public sector duty on students’ unions include the following.
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Certain students’ union activities may create issues in terms of their parent institution’s
compliance with the public duty. For example, if a students’ union organises an event that is
likely to raise tensions between different protected groups, and the event is going to be held
on institutional premises or will require the involvement of the institution’s services (eg
security services), then the institution will need to be consulted about the event beforehand.
This is because the institution will need to properly consider the matter and demonstrate its
decision or action complies with the duty to foster good relations between different groups of
people.
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Where a students’ union has any kind of contractual relationship with the institution (for
example, the lease of premises or the union’s provision of services on behalf of the institution),
the institution is likely to require that the union’s activities are consistent with the public
sector duty.
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In some cases, students’ unions are constitutionally integral parts of their parent institution,
rather than being a separate legal entity. Where this is the case, it is likely that the students’
union will be covered directly by the public duty as part of the institution.
Positive action
The Equality Act allows students’ unions to adopt voluntary positive action measures to:
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alleviate disadvantage experienced by people who share a protected characteristic
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reduce underrepresentation in relation to particular activities
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meet particular needs
Such measures would need to be a proportionate way of achieving the relevant aim.
Examples:
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It would be lawful for a students’ union to reserve positions for members of certain
underrepresented groups.
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A students’ union provides mentoring and additional support for women wishing to run for
sabbatical officer positions to address the gender imbalance caused by the far greater number
of male applicants.
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A students’ union carries out a diversity survey of its staff and finds out that, in comparison
with the local and/or student population, it employs a low number of black and minority
ethnic staff. The students’ union undertakes outreach work such as raising awareness of public
appointments within the community to encourage more applications from black and minority
ethnic people.
The Act also includes positive action provisions around recruitment and promotion. It permits an
employer to take a protected characteristic into consideration when deciding who to recruit or
promote, where people with the protected characteristic are at a disadvantage or are
underrepresented. This can be applied only where candidates are equally qualified and does not
allow employers to have a policy of automatically treating people who share a protected
characteristic more favourably than those who do not. Also, it is important to note that this is a
voluntary provision and students’ unions can choose to use it, if they so wish.
Example:
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Two equally qualified and experienced applicants, one male and one female, apply for a job as
general manager of a students’ union. At interview, both candidates are equally appointable.
The rest of the senior management team are men. In this case, it would be lawful to use
gender as a tipping factor in the decision-making process.
What work are organisations in HE doing around the Equality
Act?
ECU and NUS will continue to support institutions and students’ unions to engage with the
Equality Act. Latest developments of the Act can be found on ECU’s website
www.ecu.ac.uk/subjects/equality-act-2010
The Equality and Human Rights Commission have produced guidance and codes of practice on the
Equality Act, see www.equalityhumanrights.com/legal-and-policy/equality-act
Disclaimer
The information in this briefing is a summary of implications of the Equality Act; anyone requiring
information about how the law applies in a particular situation should seek specialist or legal
advice.
The Act covers England and Wales and, with the exception of one clause, Scotland. Subject to
some minor provisions, the Act does not apply in Northern Ireland.
You can download this briefing from the websites of ECU, NUS and NUS Connect (see details
overleaf).
Equality Challenge Unit
ECU works to further and support equality and diversity for staff and students in higher education
across all four nations of the UK, and in further education in Scotland.
ECU works closely with colleges and universities to seek to ensure that staff and students are not
unfairly excluded, marginalised or disadvantaged because of age, disability, gender identity,
marital or civil partnership status, pregnancy or maternity status, race, religion or belief, sex,
sexual orientation, or through any combination of these characteristics or other unfair treatment.
T 020 7438 1010
E info@ecu.ac.uk
www.ecu.ac.uk
National Union of Students
NUS is a voluntary membership organisation with 600 member students’ unions. Through the
member students’ unions, NUS represents the interests of more than seven million students with
the aim to promote, defend and extend the rights of students and to develop and champion
strong students’ unions.
T 020 7380 6600
E nusuk@nus.org.uk
www.nus.org.uk
www.nusconnect.org.uk
Copyright – Equality Challenge Unit 2012
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