Indirect discrimination through university policy

Short answer

Yes. The whole point of indirect discrimination is that it arises from a rule or practice that is applied equally to everyone but which, in practice, puts people who share a protected characteristic at a particular disadvantage. A policy does not escape being discriminatory simply because it is neutral on its face and applied uniformly to all students.

The legal framework

Universities in England and Wales are caught by the Equality Act 2010. Section 91 prohibits a university (as the “responsible body”) from discriminating against students in the way it provides education and access to benefits, facilities and services. Indirect discrimination is one of the prohibited forms.

Section 19 of the Equality Act 2010 defines indirect discrimination. It occurs where a person applies a “provision, criterion or practice” (often shortened to PCP) that is applied to everyone, but which:

1. puts, or would put, people who share a relevant protected characteristic at a particular disadvantage compared with people who do not share it;

2. puts, or would put, the individual claimant at that disadvantage; and

3. cannot be shown by the university to be a proportionate means of achieving a legitimate aim.

The explanatory notes to the Act make the position explicit: indirect discrimination occurs precisely when “a policy which applies in the same way for everybody has an effect which particularly disadvantages people with a protected characteristic.” So universal application is not a defence. If anything, universal application is a defining feature of an indirectly discriminatory PCP.

The protected characteristics

Indirect discrimination can apply to age, disability, gender reassignment, marriage and civil partnership, race, religion or belief, sex, and sexual orientation. It does not apply to pregnancy and maternity in the same way, though related disadvantages can often be pursued under sex or as pregnancy discrimination through other routes.

How this works in practice for a university policy

A university policy that on its face is neutral can still bite unequally. Some illustrative examples of the kind of policy that has been challenged as indirectly discriminatory:

A blanket attendance or in-person examination requirement can disadvantage disabled students or those with caring responsibilities linked to sex.

A rule requiring all assessments to be completed within a fixed window with no flexibility can disadvantage students with a disability, or students whose religious observance falls in that period.

A dress code or uniform rule can disadvantage students of particular religions.

A rule that all students must attend on certain days can disadvantage those observing a particular Sabbath or religious festival.

A language, residence or qualification requirement can disadvantage students of a particular national or racial group.

In each case the policy applies to every student, yet the effect falls disproportionately on a group with a protected characteristic.

What has to be shown

To establish indirect discrimination you would need to identify and evidence the following:

1. The PCP. Point precisely to the rule, criterion or practice complained of. It can be a formal written policy or an informal but consistent practice.

2. Group disadvantage. Show that the PCP puts, or would put, people sharing your protected characteristic at a particular disadvantage compared with others. This usually needs some evidence of comparative impact, though for some characteristics the disadvantage may be obvious or can be established by inference or, in some cases, general knowledge and statistics.

3. Individual disadvantage. Show that you personally are put at that disadvantage. You do not necessarily have to prove the exact reason the group is disadvantaged applies to you individually, but you must actually suffer the disadvantage.

The justification defence

This is where most indirect discrimination cases are won or lost. Even if a PCP is shown to be indirectly discriminatory, the university has a defence if it can show the PCP is a proportionate means of achieving a legitimate aim.

Legitimate aim means a real, objective reason, for example maintaining academic standards, ensuring the integrity of assessment, protecting health and safety, or the efficient running of the institution. Cost saving alone cannot be a legitimate aim, although cost can be part of the picture.

Proportionate means the university must show the policy is a reasonable and necessary way of achieving that aim, and that the aim could not reasonably have been achieved by a less discriminatory alternative. The court or tribunal weighs the discriminatory effect against the importance of the aim. If a less intrusive measure would have worked, or if the disadvantage is severe and the aim marginal, the defence is likely to fail.

Overlap with the duty to make reasonable adjustments

If the disadvantage relates to disability, there is a separate and often more powerful route. A university owes an anticipatory duty to make reasonable adjustments where a PCP puts disabled students at a substantial disadvantage. Unlike indirect discrimination, there is no justification defence to a failure to make a reasonable adjustment; the only question is whether the adjustment was reasonable. So for a disabled student it is often better to frame the complaint as both indirect discrimination and failure to make reasonable adjustments.

Practical next steps

The order below usually makes sense before considering any formal legal claim.

1. Gather the evidence. Keep the policy wording, any correspondence, and evidence of how the policy has affected you and, if possible, others sharing your characteristic. Note dates, because time limits are short.

2. Use the internal route first. Ask the university for adjustments or an exemption, then use the formal complaints procedure and, if you are a disabled student, engage disability support services. Courts and the ombudsman expect internal remedies to be exhausted.

3. Escalate to the Office of the Independent Adjudicator for Higher Education (OIA) once you have a Completion of Procedures letter. The OIA can review whether the university acted reasonably and can recommend a remedy. It is free and less adversarial than court.

4. Consider a county court claim under the Equality Act 2010. Discrimination in education by a higher education institution is enforced through a claim in the county court, not the employment tribunal. The time limit is generally six months from the act complained of, though the court has a discretion to extend where just and equitable. This is a significant step with costs risk, so weigh it carefully against the OIA and internal routes.

5. Consider the Equality and Human Rights Commission and free advice services such as Citizens Advice for support.

Key facts that would sharpen the answer

The strength of any claim depends on details that are not yet clear, in particular:

Which protected characteristic is engaged, and what specific policy you are challenging.

What the university says its aim is, and whether a less discriminatory alternative was available.

Whether disability is involved, which opens the reasonable adjustments route.

What the individual and group impact actually is, and what evidence exists for it.

The dates involved, because internal complaint stages, the OIA and any court claim all run to time limits.

In short, uniform application of a policy is not a shield. A neutral policy applied to every student can still be unlawful indirect discrimination if it disproportionately disadvantages a protected group and the university cannot objectively justify it as a proportionate means of achieving a legitimate aim.