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To be legitimate the aim of the provision, criteria or practice must be legal and non-discriminatory and represent a real objective consideration.

In the context of further and higher education, examples of legitimate aims might include: maintaining academic and other standards; and ensuring the health and safety and welfare of students. Even if the aim is legitimate the means of achieving it must be proportionate.

Proportionate means ‘appropriate and necessary’, but ‘necessary’ does not mean that the provision, criterion or practice is the only possible way of achieving the legitimate aim. Although the financial cost of using a less discriminatory approach cannot, by itself, provide a justification, cost can be taken into account as part of the further or higher education institution’s justification, if there are other good reasons for adopting the chosen practice. The more serious the disadvantage caused by the discriminatory provision, criterion or practice, the more convincing the justification must be.

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