The EHRC Code of Practice on Services and its implications for higher and further education institutions

The Equality and Human Rights Commission’s (EHRC) new Code of Practice on Services, Public Functions and Associations (the code), when it comes into force, will represent the most significant update to equality law guidance since the Equality Act 2010 (the Act) was introduced. Drawing together 15 years of developments in case law, it will become an important reference point for courts and tribunals when interpreting the Act and is likely to influence how organisations approach equality-related decision-making in practice.

For higher and further education institutions, the implications are particularly significant. Universities and colleges operate in a complex environment, delivering education alongside a wide range of services, from accommodation and sport to wellbeing support and increasingly digital provision. Although the code focuses on services and public functions, many of the legal principles it explains also apply to the delivery of education itself. As a result, it is likely to shape both institutional policies and day-to-day decisions across the sector.

Much of the commentary surrounding the code has, understandably, focused on its treatment of sex and gender reassignment, which we will explore in a separate blog. However, its impact extends far beyond those issues. Here are five other actions institutions should be taking now.

1. Review positive action initiatives

The code contains substantially expanded guidance on positive action. While positive action remains lawful where it is designed to address disadvantage, under-representation or different needs, the code places much greater emphasis on proportionality and justification.

Institutions are reminded of the need to base positive action measures on clear evidence, such as data, research or service-user insight. Outreach programmes, scholarships, mentoring schemes and leadership initiatives, for example, should all be capable of being justified with evidence.

The code also highlights the importance of establishing a clear link between the proposed measure and the disadvantage being addressed. Positive action must be targeted, capable of achieving its objective and subject to regular review.

Universities and colleges should be prepared to explain why a particular intervention is needed, how it addresses identified disadvantage and whether less discriminatory alternatives have been considered. Good governance will increasingly require a documented and evidence-based approach, and being to explain why action is being taken will be increasingly important to ensure institutions can continue to act to address inequality without challenge and criticism.

2. Reassess policies through an indirect discrimination lens

The updated code provides more detailed guidance on indirect discrimination and emphasises a structured approach to analysing policies, criteria and practices. The focus is on identifying the policy, assessing whether it creates group disadvantage, considering whether an individual suffers that disadvantage and then evaluating whether the policy can be objectively justified.

Importantly, the code also reflects developments in the law relating to “same disadvantage” discrimination. This means that individuals who do not themselves possess the relevant protected characteristic may nevertheless be able to bring claims where they suffer substantially the same disadvantage as those who do. This expands, potentially quite significantly, the scope of those who can claim for indirect discrimination.

Universities and colleges should therefore be considering revisiting areas such as:

• Admissions processes.
• Attendance requirements.
• Timetabling arrangements.
• Assessment policies.
• Accommodation rules.
• Digital learning requirements.

Policies that appear neutral on the face of it may still create disadvantage for particular groups. Institutions should ensure that they carry out robust assessments, supported by evidence rather than assumptions.

3. Strengthen approaches to disability and neurodiversity

Perhaps one of the most important themes running through the sections in the Code about disability is the move from reactive compliance to proactive inclusion. The guidance contains expanded discussion of disability, including hidden impairments, fluctuating conditions and neurodiverse conditions. It also confirms that an impairment should be treated as substantial if it is more than minor or trivial.

This has significant implications for educational institutions, given the increasing numbers of those disclosing autism, ADHD, long-term mental health conditions and other non-visible disabilities.

The code encourages providers to move beyond a narrow focus on individual adjustments and instead consider whether services have been designed inclusively from the outset.

In practice, this means institutions should consider:

• Whether services are accessible and inclusive.
• Whether information is provided in accessible formats.
• Whether communication practices disadvantage particular groups.
• Whether staff have sufficient understanding of neurodiversity.

An inclusive design approach is likely to be easier to defend than one based solely on responding to individual complaints.

4. Treat reasonable adjustments as an ongoing institutional duty

The code reinforces that the duty to make reasonable adjustments is anticipatory, continuing and evolving. Providers are expected to think ahead and remove barriers before disabled people encounter them.

Importantly, the code emphasises that this duty applies equally to digital and online services. Adjustments should seek to provide an equal standard of service rather than identical treatment. Failure to make reasonable adjustments remains a distinct form of discrimination.

The guidance identifies a number of relevant factors when assessing reasonableness, including effectiveness, practicability, cost, resources, disruption and the availability of external assistance. It also recognises that barriers may be physical, informational, communication-based or attitudinal.

The expectation is increasingly one of continuous improvement rather than minimum compliance.

5. Consider the implications of the menopause guidance

The code expressly acknowledges that menopause symptoms may amount to a disability where they have a substantial and long-term adverse effect on normal day-to-day activities. It also highlights the possibility of claims arising under disability, sex discrimination, age discrimination and harassment provisions.

Although much discussion around menopause has focused on employment, institutions should also consider service-related implications for students and service users.

Institutions may wish to review:

• Student support arrangements.
• Healthcare and wellbeing services.
• Attendance procedures.
• Mitigating circumstances processes.
• Harassment policies.

A failure to recognise the potential impact of menopause-related symptoms could create legal and reputational risks.

Looking ahead

The most important message from the new Code is not that universities and colleges must immediately rewrite every equality policy. Rather, it is that equality decision-making is increasingly expected to be evidence-based, carefully documented and capable of withstanding detailed scrutiny.

Across positive action, disability, reasonable adjustments, indirect discrimination and the increasingly challenging issues surrounding sex and gender reassignment, the Code consistently emphasises justification, proportionality, balancing competing rights and maintaining clear records of decision-making.

For governing bodies, senior leaders and compliance teams, there will be need to review policies, revisit risk assessments and ensure that institutional practices reflect both current law and the expectations set out in the code. Those institutions that can demonstrate thoughtful, evidence-led decision-making will be best placed to navigate what is likely to become an increasingly contested area of regulation and litigation in the years ahead, whilst continuing to take robust action to tackle evidenced inequality and disadvantage across their stakeholders and communities.

This content is provided for general informational purposes only and does not constitute legal advice. It is not intended to address the circumstances of any individual or entity, nor should it be relied upon as a substitute for specific advice from a qualified solicitor. The information reflects the legal position as at the date specified and may be subject to change. If you require advice on a specific matter, please contact us directly.