Equality Act 2010:
implications for students’ unions
Contact
Chris Brill, senior policy adviser, ECU
Robert Holland, research and policy officer (liberation), NUS
Mandeep Rupra-Daine, equality and diversity consultant and chair of diversity action working group, NUS
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Introduction
What is the Equality Act?
Who is protected by the Equality Act?
What action is unlawful under the Equality Act?
Direct discrimination
Indirect discrimination
Discrimination arising from disability
Failure to make reasonable adjustments
Harassment
Victimisation
Who is responsible for unlawful conduct under the Equality Act?
The provision of services
Employment
Clubs, societies and associations
Does the relationship between the students’ union and the institution affect a students’ union’s responsibility under the Act?
What else can be done under the Act to challenge inequalities?
Public sector equality duty
Positive action
What work are organisations in HE doing around the Equality Act?
Disclaimer
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
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
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:
=age
=disability
=gender reassignment
=marriage and civil partnership (in the context of employment only)
=pregnancy and maternity
=race (including colour, nationality and ethnic or national origins)
=religion or belief (including lack of belief)
=sex
=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
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:
=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
=an employer shortlists only male job applicants for an interview because they assume women will not ‘fit in’
=an education provider refuses to let a student go on a residential trip because they are a wheelchair-user
=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:
=a student whose partner has a mental health condition is refused access to a society event
=an employee is spurned by their colleagues because their partner has undergone gender reassignment
Discrimination based on perception can occur if, for example:
=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.
=It is not unlawful direct discrimination to treat a disabled student more favourably than a non-disabled student because of a disability, for example colleges offering a bursary for disabled students only.
=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:
=the way the union operates and offers services and facilities
=formal and informal policies, decisions and rules (including, for example, requirements to stand for election)
Indirect discrimination may occur in a number of ways.
=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.
=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:
=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
=making changes to the physical environment, such as providing inclusive access to a union building
=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:
=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)
=unwanted conduct of a sexual nature (sexual harassment)
=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 ( 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:
=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
=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
=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
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:
=having a policy on harassment
=notifying third parties that harassment of employees is unlawful and will not be tolerated, for example by the display of a public notice
=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
=encouraging employees to report any acts of harassment by third parties to enable the employer to support the employee and take appropriate action
=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):
=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’)
=refuse an existing member or guest access to a benefit, or deprive him or her of membership
=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
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.