Discrimination by perception or association

Yes. In England and Wales a university can act unlawfully if it treats you less favourably either because it wrongly assumes you have a protected characteristic, or because of your connection to someone who has one. Both situations are covered by the direct discrimination provisions of the Equality Act 2010.

The legal basis

Direct discrimination is defined in section 13 of the Equality Act 2010: a person discriminates against you if, because of a protected characteristic, they treat you less favourably than they treat or would treat others. The important point is the wording “because of a protected characteristic” rather than “because of your protected characteristic”. That deliberate drafting means the characteristic does not have to be one you actually possess.

The Explanatory Notes to the Act and the Equality and Human Rights Commission’s Technical Guidance on Further and Higher Education confirm this covers two distinct situations:

Discrimination by perception, where you are treated less favourably because the institution mistakenly thinks you have a protected characteristic, whether or not you actually do.

Discrimination by association, where you are treated less favourably because of your connection to another person who has a protected characteristic, for example a disabled child, a partner of a particular religion or race, or a family member.

Which characteristics are covered

Perception and association both apply to the protected characteristics of age, disability, gender reassignment, race, religion or belief, sex and sexual orientation. They do not apply to pregnancy and maternity, and marriage and civil partnership works differently. So if, for example, the university assumed you were pregnant, that specific perception route is not available in the same way, though the treatment might be challenged as sex discrimination depending on the facts.

Universities are bound by these rules

Part 6 of the Equality Act 2010 applies to further and higher education providers. Under section 91, a university must not discriminate against a student in the way it provides education, in access to benefits, facilities or services, by excluding you, or by subjecting you to any other detriment. It also owes duties to applicants and, in some respects, to former students. So the perception and association principles apply across admissions, teaching, assessment, disciplinary processes, accommodation, placements and student services.

What you would need to show

To establish direct discrimination on either basis, the key elements are broadly:

1. Less favourable treatment. You were treated worse than a real or hypothetical comparator in materially the same circumstances would have been treated.

2. The reason for the treatment. The treatment was because of a protected characteristic. For perception cases this means the university acted on a belief that you had the characteristic. For association cases it means the treatment was because of your link to a person who has the characteristic.

3. A causal connection between the characteristic (perceived or associated) and the treatment.

You do not need to prove the university’s motive was malicious. It is enough that the protected characteristic was a material reason, consciously or unconsciously, for the treatment.

Distinguishing genuine discrimination from other explanations

Before concluding that what happened is unlawful discrimination, it is worth testing whether there is an ordinary, non-discriminatory explanation. Universities make many decisions about grades, deadlines, funding, misconduct and support for reasons unconnected to any protected characteristic. Adverse treatment on its own is not discrimination. The question is always whether the perceived characteristic or the association was an operative reason for the treatment. Points that tend to support a discrimination claim include:

Comments or communications referring to the assumed characteristic or the associated person.

A comparator, real or hypothetical, who lacked the perceived characteristic or association and was treated better in similar circumstances.

An absence of any credible alternative explanation, or shifting and inconsistent reasons from the university.

If there is a solid academic, procedural or contractual reason for what happened, a discrimination claim becomes much weaker, so it is important to identify the material facts rather than rely on how the situation feels.

How the burden of proof works

Under section 136 of the Equality Act, if you can show facts from which a court could decide, in the absence of any other explanation, that discrimination occurred, the burden shifts to the university to show that the treatment was not because of the protected characteristic. This is significant in practice, because direct evidence of the reason for a decision is often held by the institution rather than the student.

Evidence to gather

Practical steps to build your position:

1. Write a dated chronology of what happened, who was involved and exactly what was said or done.

2. Keep all relevant emails, letters, module handbooks, policies and decision records.

3. Note any comments, whether written or verbal, referring to the assumed characteristic or the associated person, and identify any witnesses.

4. Identify a comparator if you can, meaning someone in a similar position without the perceived characteristic or association who was treated more favourably.

5. Consider a subject access request under data protection law to obtain internal records and communications about you.

Practical routes to resolve it

Litigation is rarely the best first step. A sensible order is usually:

1. Internal complaint. Use the university’s student complaints procedure, setting out the facts clearly and stating that you consider the treatment to be unlawful discrimination under the Equality Act 2010. Keep it factual and specific.

2. Completion of Procedures Letter. If the internal process does not resolve matters, ask for a Completion of Procedures Letter, which you will need for the next stage.

3. Office of the Independent Adjudicator for Higher Education. For most higher education students in England and Wales, the OIA offers a free, independent review of unresolved complaints, including complaints involving alleged discrimination. It can recommend remedies such as apologies, procedural correction and financial payments. It is far cheaper and quicker than court.

4. County Court claim. Claims of discrimination in further or higher education under Part 6 of the Equality Act are generally brought in the County Court, not the Employment Tribunal. The usual time limit is six months less one day from the act complained of, though the court has discretion to extend where it is just and equitable. Because the limitation period is short, keep it clearly in mind even while pursuing internal routes, and do not let the internal process quietly run down the deadline. A court can order remedies including a declaration, damages including for injury to feelings, and recommendations.

Missing facts that would sharpen the advice

The strength and best route depend on details you have not yet given, including which protected characteristic is involved, exactly what the university did and its stated reasons, whether this concerns admissions, assessment, discipline, accommodation or services, whether you are a current student, applicant or former student, the dates of the key decisions, and what internal steps have already been taken. If you set those out, the analysis can be made much more specific, including on limitation and the most effective remedy.

Summary

A university can act unlawfully by discriminating against you based on a protected characteristic it wrongly assumes you have, or because of your association with someone who has one, for all the protected characteristics except pregnancy and maternity. The central questions are whether you were treated less favourably and whether the perceived characteristic or association was a real reason for that treatment, as opposed to an ordinary academic, procedural or contractual reason. The practical path usually runs through the internal complaints procedure, then the Office of the Independent Adjudicator, with a County Court claim under the Equality Act 2010 as the formal legal option subject to the six month limitation period.