Why we say that asking for an unspecified degree qualification is discriminatory

Written by David Burgess – 22nd June 2021

Access to university is not a level playing field. A recent report from the UK Government found that “Students from disadvantaged backgrounds, low income households, care-leavers, mature students, disabled students and students from some ethnic minority groups have a much lower participation in higher education than students from other groups”.

In fact, young people from the UK’s most disadvantaged postcode districts are nearly four times less likely to go to university than those in the most advantaged areas.

But these aren’t the only people who face barriers to higher education. There are also many personal circumstances and life events that have a significant impact on a young person’s life, disrupting their education and making it nigh on impossible for them to go to college or university. These include:

• Pregnancy/having children
• Taking on caring responsibilities for a parent or family member
• Spending time in/leaving care
• The death of a parent or family member
• Experiencing homelessness
• Experiencing violence/abuse
• Experiencing addiction
• Experiencing serious illness/disability
• Experiencing bullying as a result of ones sexuality

All of the reasons above are based on experiences shared with us by talented fundraisers who have been prevented from applying for jobs in our sector as a result of not having a degree.

These are the people we are locking out of our profession by continuing to make degree qualifications an essential requirement for fundraising jobs.

While the above examples might satisfy a common usage definition of discrimination there is a legal definition we must consider, as set out in the Equality Act 2010.

In the UK, the Equality Act protects people from discrimination on the grounds of nine protected characteristics – age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation.

Discrimination can include direct discrimination (where a person is treated worse because they have a protected characteristic, are perceived to have a protected characteristic or are connected to someone with a protected characteristic), or indirect discrimination (where a policy is applied in the same way for everybody but the result is that it disadvantages a group of people who share a protected characteristic). (https://www.equalityhumanrights.com/en/advice-and-guidance/what-direct-and-indirect-discrimination)

Interestingly, the premise of indirect discrimination can be traced back to an American case in 1970 – Griggs v Duke Power Co. This case centred on a policy that required employees to have a high school diploma or pass an intelligence test in order to advance their careers. Employees argued that the inferior segregated education meant that people of colour were less likely to pass these tests. Finding in favour of the employees, the Supreme Court found that these tests had no bearing on the skills and abilities needed to do the jobs but had a disparate negative impact on African Americans, preventing them from gaining employment, transfers and promotions. (https://www.britannica.com/event/Griggs-v-Duke-Power-Co)

In the UK, the case of Homer v Chief Constable of West Yorkshire, the Supreme Court emphasised that there is a relatively low threshold for establishing indirect discrimination; claimants simply have to show that persons with a protected characteristic were disadvantaged when compared to other persons. (http://www.agediscrimination.info/case-reports/2012/4/25/homer-v-chief-constable-of-west-yorkshire)

This was reinforced in the more recent case of Essop & others v Home Office (UK Border Agency) in 2017. In passing judgement in the Supreme Court, Lady Hale identified six features of indirect discrimination, including:

• It is not necessary to explain why a provision, criteria or practice (PCP) has a disparate impact on people with a protected characteristic. It is enough to show that it does. In some cases, there will be no generally accepted explanation for the disparate impact.
• The PCP need not put everyone who shares the protected characteristic at a disadvantage: it is enough that it puts a greater proportion of that group at a disadvantage
• Statistical evidence, which establishes correlations rather than causal links, can be sufficient to establish that there is particular disadvantage, or disparate impact

(https://www.devereuxchambers.co.uk/resources/blog/employment/view/indirect-discrimination-goes-back-to-its-roots-disparate-impact-approach-up)

Age – The average age at graduation in the UK is 27. The earliest most people in the UK graduate is 21. This would mean that people under the age of 21 would be disadvantaged by the need for a degree qualification. However, it is not just young people that face indirect discrimination by making a degree essential. While figures for 2018 showed approximately 50% of people went on to university this was far less common 25-30 years ago. The comparable figures for 1980 show just 15% of people going to university. This means that older members of the workforce also face indirect discrimination as they are less likely to have gone to university.

Disability – A UK Government report dated 22^nd February 2021 shows that “Disabled people are underrepresented in higher education and disabled students in higher education have somewhat worse outcomes from higher education than non-disabled students. Students with a disability are more likely to drop-out of courses and those that finish their degree tend to have lower degree results”. As a result, people with a disability are also more likely to be disadvantaged by making a degree an essential requirement (https://commonslibrary.parliament.uk/research-briefings/cbp-8716/#:~:text=In%202019%2F20%20332%2C300%20UK,47%25%20since%202014%2F15.

Gender – Research by the Higher Education Policy Institute dated 7^th March 2020 shows there is a significant difference between males and females going to university, with 56.6% of women going on to higher education, compared to only 44.1% of men. (https://www.hepi.ac.uk/2020/03/07/mind-the-gap-gender-differences-in-higher-education/ )

Race – The government’s report into Widening Participation in Higher Education shows that representatives of some BAME communities are less likely to go into higher education. (https://commonslibrary.parliament.uk/research-briefings/cbp-8204/)

Under the Equality Act 2010, organisations can still apply a policy, rule or practice that constitutes Indirect Discrimination, as long as they can demonstrate Objective Justification. (https://www.equalityhumanrights.com/en/advice-and-guidance/commonly-used-terms-equal-rights#objective)

According to the Equality and Human Rights Commission, to prove objective justification:

• the aim must be a real, objective consideration, and not in itself discriminatory (for example, ensuring the health and safety of others would be a legitimate aim)
• if the aim is simply to reduce costs because it is cheaper to discriminate, this will not be legitimate (NB: Charities that have told us they use this requirement to reduce the number of applications in order to save time and money reviewing them should probably take note of this!)
• working out whether the means is ‘proportionate’ is a balancing exercise: does the importance of the aim outweigh any discriminatory effects of the unfavourable treatment?
• there must be no alternative measures available that would meet the aim without too much difficulty and would avoid such a discriminatory effect: if proportionate alternative steps could have been taken, there is unlikely to be a good reason for the policy, rule or practice

We believe that asking for a degree qualification in an unspecified subject cannot meet the requirement that “there must be no alternative measures available that would meet the aim without too much difficulty and would avoid such a discriminatory effect”. This is because if the employer doesn’t mind what course the degree is in, they cannot argue that it is the specific knowledge and skills developed on the course that is essential for the role. This only leaves two things they can be looking for:

• The experience of going to university – if this is what is required it could be argued that someone who started university but didn’t take the final exams would have the same experience, despite not having a degree. Given that people with disabilities have a higher rate of dropout than non-disabled students this wouldn’t meet the standard for objective justification.
• A range of soft or secondary skills that the employer will have been developed and/or be able to evidence as a result of their course (such as research skills, communication and problem solving) – while a degree might help someone develop these skills, it is certainly not the only way they could be developed or evidenced. A proportionate alternative step would be for the employer to set out the specific skills and/or knowledge they require for the role, rather than asking for a degree.

In both cases, specifying the actual experience or skills the organisation is looking for would be a proportionate step that avoids the discriminatory effect. As a result, we believe this can never meet the grounds needed for objective justification.

*Disclaimer – It’s important to note we are not lawyers. We have set out our argument based on our understanding of the current case law in the UK. However, this should not be taken as legal advice.

This is a work in progress. We welcome feedback on the strengths and weaknesses of our argument from everybody – and especially from those with experience of employment law and the Equality Act.

For more information on why this is likely to be considered discriminatory in American law as well, see:

https://www.nolo.com/legal-encyclopedia/is-discriminatory-require-applicants-college-degree.html

https://www.thevectorimpact.com/credentialism/