Reforming access and participation in universities: Equality Act considerations

Kathleen Heycock, Scott McGrory and James Davies, a current trainee in the team, explore how universities can innovate to widen access for underrepresented groups while navigating Equality Act risks of discrimination.

“We will expect higher education providers to play a stronger role in expanding access and improving outcomes, especially for disadvantaged students” – Bridget Phillipson, 4 November 2024

“If we are to win an argument for ongoing funding of this crucial work, there will need to be changes in how these networks are organised and run” – John Blake, 7 November 2024

“We will encourage continuous improvement in initiatives to widening access through rigorous evaluation of access and participation plans and a focus on activities to raise attainment in schools” – Consultation on OfS strategy for 2025 to 2030, 12 December 2024

Three statements in just over one month from the Secretary of State for Education, the Director of Fair Access and Participation at the Office for Students (OfS) and included in the OfS’ consultation on its long term strategy. It is clear the Government and its regulator are expecting major change from the Higher Education sector in the work it does in improving access and participation for students from underrepresented backgrounds. Innovation is the focus for widening participation teams and Uni Connects as the new Access and Participation Plan (APP) cycle is worked through.

Universities will have to be careful not to stray accidentally beyond the bounds of legally acceptable programmes in pursuit of a positive goal. Whilst widening participation is vital to the success of the sector, prioritising any one candidate or programme participant over another brings risk of discrimination. This article provides a refresher on some of the legal boundaries and practical tools available when designing their access programmes.

General principles: widening participation and risk

Expectations on universities

Widening participation and access work targets the underrepresentation of specific groups within HE providers. This sector-wide work is a response both to a general view that it is good to do such work and to specific, legislative expectations on universities to close these gaps and improve equality of opportunity. For example, the terms of the Public Sector Equality Duty at Section 149 of the Equality Act (the Act), or the specific targeting of universities at Section 32 of the Higher Education and Research Act 2017, requiring institutions to have and include in their APP’s “provisions relating to the promotion of equality of opportunity”.

Universities will often identify underrepresented groups along the lines of the protected characteristics in the Act and target their widening participation programmes accordingly.  However, most also go beyond these protected characteristics and consider postcode or individual measures more closely aligned to socio-economic backgrounds. 

Direct discrimination

There is a clear tension in these expectations. Section 91 of the Act makes clear universities must not “discriminate against a person … in the arrangements it makes for deciding who is offered admission as a student.” This builds on the general provision at Section 13 of the Equality Act that a person must not treat someone less favourably because of a protected characteristic. Bringing a claim of discrimination is not limited to those who may be seen as being systemically minoritised – it is open to anyone who has suffered a detriment stemming from their protected characteristic. So, universities recruiting to their widening participation programmes or recruiting graduates from those programmes into their institutions risk claims from unsuccessful students because of the same protected characteristics the University is trying to focus on. For example, a white candidate may bring a claim if they believe that the University is unlawfully focusing on non-white candidates.

Indirect discrimination

Separately, even those programmes which do not directly prioritise one student over another because of a protected characteristic risk action from unsuccessful applicants. Section 19 of the Act prohibits indirectly discriminatory conduct where a provision, criterion or practice (PCP) disproportionately affects people with a protected characteristic, even if on its face that conduct is not rooted in a protected characteristic.

For example, universities are well versed in postcode measures for student recruitment and widening participation. Whether considering a student’s IMD or ACORN scores, these measures are not directly tied to a protected characteristic. However, it is entirely possible that specific postcodes will have disproportionately high levels of people from minoritised ethnic backgrounds who are not in those targeted IMD or ACORN areas. Prioritising them for admission or widening participation programmes could disproportionately disadvantage individuals from other specific ethnicities.

It is likely such a decision could be justified (legally) as a proportionate means of achieving a legitimate aim if the University can show underrepresentation of students from those postcodes, but universities should be mindful of this risk. Otherwise, discrimination claims present legal, reputational and financial risks for universities. 

Guidelines for innovation

Positive action

Universities will be familiar with the prohibition on positive discrimination under the Act. Section 158, however, provides an exception to the general prohibitions on discriminatory conduct described above by permitting the taking of positive action.

Where a university or institution believes that a group of people sharing a protected characteristic have a disproportionately low level of participation in an activity, Section 158 allows them to take action which is a proportionate means of enabling or encouraging persons from that group to participate in that activity.

The exception allows for “any action” and is not limited to the types of programmes that have been seen in recent years. With the OfS making clear that better progress needs to be made, the opportunity arises for higher education institutions to create new and innovative ways of targeting, encouraging, and retaining students who are under-represented in higher education, either as a whole or in specific courses.

Targeting to innovate

In relying on Section 158 in designing policies and programmes, any positive action is required to be proportionate. An appropriate degree of funding, and emphasis, should be placed on those programmes. Universities can show that new programmes, with significant funding, to target the recruitment of underrepresented students, are proportionate through ensuring there is solid research and evidence to show that a particular group is under-represented and identifying barriers to access, to confirm that whatever action is taken will have an impact proportionate to the cost. 

Institutions could, for example, point to the work of TASO in identifying underrepresentation or what widening participation interventions ‘work’, to demonstrate their proposed programmes and policies are proportionate. Universities can tie this to the work of their local teams and underrepresentation at a granular, programme level, not just an institutional one. 

Student success: internships

Many institutions have looked in recent years to support students from widening participation (WP) backgrounds by offering paid internships during their time at university, designed to enhance their long-term professional development.

Universities should be aware that the legislation considering student recruitment and employee recruitment differs, and a paid internship can too closely walk this line. Universities can pay WP interns but should be careful to ensure these are truly “interns”, not employees carrying out substantive work.

This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.

© Farrer & Co LLP, December 2024