University discrimination challenge

Legal framework

Discrimination by a university against a student is governed by the Equality Act 2010. Universities and other higher education providers are covered by Part 6, Chapter 2 of the Act, which deals specifically with further and higher education. The Act protects nine characteristics, and the ones you mention are race, sex, religion or belief, disability, sexual orientation and gender reassignment. Age and pregnancy or maternity are also protected.

A university must not discriminate against a student in the way it provides education, in access to facilities and services, by excluding the student, or by subjecting the student to any other detriment. It also owes duties in relation to admissions and, importantly, an anticipatory and individual duty to make reasonable adjustments for disabled students.

The types of discrimination you can rely on

It helps to identify which form of discrimination fits your facts, because the legal test differs.

Direct discrimination is being treated less favourably because of a protected characteristic. Indirect discrimination is where a provision, criterion or practice applies to everyone but puts people who share a characteristic at a particular disadvantage and cannot be objectively justified. Harassment is unwanted conduct related to a protected characteristic that violates dignity or creates an intimidating, hostile, degrading, humiliating or offensive environment. Victimisation is being treated badly because you have complained about discrimination or supported someone else’s complaint.

For disability there are additional protections: a failure to make reasonable adjustments, and discrimination arising from disability, where you are treated unfavourably because of something connected to your disability and the university cannot justify it.

Do not assume conduct is unlawful discrimination simply because it feels unfair or you belong to a protected group. The key question is whether the treatment was because of, or related to, the protected characteristic, or whether a neutral rule disadvantaged your group. Poor administration, an academic judgment you disagree with, or a general policy applied to everyone will not necessarily amount to discrimination. Gathering the facts that show the link to the characteristic is what matters.

Step one: gather evidence early

Before you take any formal step, collect and preserve everything relevant:

1. Emails, letters, messages, marking feedback, meeting notes and recordings of decisions.
2. Dates and a clear chronology of what happened, who was involved and what was said.
3. The relevant university policies and regulations, including the student complaints procedure, the academic appeals procedure, the equality policy and any disability support or reasonable adjustment policy.
4. Comparators if relevant, meaning evidence of how students without your characteristic were treated in similar circumstances.
5. For disability claims, medical evidence and any record of adjustments requested and the university’s response.

Step two: use the internal procedures

In almost all cases you should raise the matter internally first. Universities have a student complaints procedure and usually a separate academic appeals procedure. Discrimination complaints normally go through the complaints procedure, while challenges to marks or academic decisions go through appeals, though the two can overlap.

Raise the issue clearly and in writing, stating that you consider you have been discriminated against, identifying the protected characteristic and the type of discrimination, and setting out what you want the university to do to put it right. Many universities have an informal or early resolution stage followed by a formal stage. You should follow the procedure to its conclusion.

At the end of the internal process the university should issue a Completion of Procedures Letter. This document is important because it confirms the internal process is exhausted and opens the door to the Office of the Independent Adjudicator.

Step three: the Office of the Independent Adjudicator

The Office of the Independent Adjudicator for Higher Education (OIA) runs a free, independent scheme to review student complaints against higher education providers in England and Wales. Almost all universities are members.

The OIA can look at complaints involving discrimination and will refer to equality law and guidance to decide whether the provider acted fairly and reasonably. However, there are important limits. The OIA cannot make a legal finding that the university has unlawfully discriminated against you, and it cannot generally review matters of academic judgment. It can recommend remedies such as an apology, a review of a decision, a change to a procedure, or a financial payment, but it cannot make binding declarations of unlawful discrimination in the way a court can.

Key procedural points to note:

1. You usually need to have completed the internal procedures and obtained a Completion of Procedures Letter before the OIA will look at your complaint.
2. The OIA must normally receive your complaint within 12 months of the date of the Completion of Procedures Letter.
3. The OIA is free to use, less formal, and lower risk than court, which makes it a sensible route for many students, particularly where you want the decision reconsidered or practical remedies rather than a legal finding.

Step four: a claim in the county court

Discrimination claims by students against universities under the Equality Act 2010 are brought in the county court, not the employment tribunal. This is different from workplace discrimination.

This route is the only one that can produce a legal finding of unlawful discrimination and remedies such as a declaration, damages including compensation for injury to feelings, and in some cases an injunction.

The time limits are strict and easy to miss:

1. The basic limit is six months less one day from the act of discrimination complained of.
2. Where discrimination is continuing, time usually runs from the end of the continuing act.
3. Importantly, if you make a complaint to the OIA within six months of the alleged discrimination, the time limit for bringing a court claim is extended by three months, giving nine months in total. This is a useful protection, but you must check the dates carefully and not assume the extension applies, because it depends on when you complained to the OIA.
4. The court has a discretion to allow a claim outside the time limit where it is just and equitable to do so, but you should never rely on this.

Because of these limits, if you think you may want to keep the court option open, watch the deadline closely even while using internal procedures and the OIA. Pursuing the internal complaint and the OIA does not automatically stop the court clock, apart from the three month extension linked to an OIA complaint made within the first six months.

The burden of proof

In a court claim the Equality Act uses a shifting burden of proof. If you can show facts from which the court could conclude, in the absence of any other explanation, that discrimination occurred, the burden shifts to the university to prove that it did not discriminate. This is why building a clear factual picture, including comparators and any link to the protected characteristic, is so important. It also explains why the university may be able to defend a claim by giving an ordinary, non-discriminatory explanation for its actions, such as a consistent application of academic regulations.

Reasonable adjustments for disabled students

If your complaint concerns disability, the reasonable adjustments duty deserves particular attention. Universities have an anticipatory duty to think in advance about the needs of disabled students, as well as a duty to respond to individual needs. If you asked for an adjustment, or the university knew or ought to have known you were disabled, and it failed to make an adjustment that was reasonable, that is a distinct and often strong ground of complaint. Keep records of what you asked for, when, and how the university responded.

The Equality and Human Rights Commission

The Equality and Human Rights Commission (EHRC) enforces equality law and produces guidance for students in further and higher education. It does not usually take up individual complaints, but its guidance is authoritative and helpful in understanding your rights and framing a complaint. In limited circumstances it can take strategic enforcement action, but you should not expect it to run your individual case.

Other practical support

Your students’ union advice service is often able to help you navigate the internal complaints and appeals procedures and can be very effective at an early stage. Citizens Advice and disability organisations can also provide guidance. For discrimination that also amounts to a criminal offence, such as a racially or religiously aggravated assault or harassment, you can additionally report the matter to the police, which is separate from the civil equality routes.

Choosing the right route

Think about what outcome you actually want. If you want a decision reconsidered, an apology, a change in practice, or a modest financial remedy, the internal procedures and then the OIA are usually the most sensible, lowest cost and lowest risk options. If you specifically want a legal finding of unlawful discrimination and potentially higher compensation, only the county court can deliver that, but it carries cost, delay, stress and litigation risk, and you may face an adverse costs order if you lose.

The two routes are not entirely exclusive. Many students complete internal procedures, go to the OIA, and keep the court option in reserve, but this only works if you protect the court time limit throughout.

Suggested order of steps

1. Gather and preserve evidence and build a chronology.
2. Identify the protected characteristic and the type of discrimination.
3. Raise the matter internally, informally then formally, in clear written terms.
4. Obtain the Completion of Procedures Letter.
5. Consider a complaint to the OIA within 12 months of that letter.
6. Throughout, keep a close eye on the county court time limit, remembering the six month basic limit and the possible extension to nine months where you complained to the OIA within six months of the discrimination.
7. Take advice before issuing court proceedings, given the cost and risk.

Key facts that will shape your position

The right strategy depends on details you have not yet given, in particular the exact dates of each act complained of, whether the discrimination is a one off or continuing, which protected characteristic and form of discrimination are involved, whether you have exhausted internal procedures, whether you have a Completion of Procedures Letter, and, for disability, what adjustments were requested and refused. These facts determine both the strength of the claim and, critically, whether any deadline is close or has passed.