Discrimination in Education

The Equality Act 2010 (EqA) applies to education in various ways, such as:

• providers of education (e.g. schools, colleges and universities)
• service providers
• employers
• public bodies required to comply with the public sector equality duties.

A school, college or university is usually run by a governing body, comprising persons elected or appointed as governors, responsible for managing the establishment in accordance with regulations and promoting high standards of educational achievement in the establishment.

Pupil means a person for whom education is being provided at a school who is under the age of 19 (included that that 19 or over but started a school year when they were under the age of 19).

Student means a person for whom education is being provided at a college or university.

The EqA prohibits discrimination, harassment and victimisation in schools, colleges and universities. It also extends the protection offered by existing legislation to pupils and students that are transsexual or who become pregnant.

The education provisions in the EqA only deal with the way schools, colleges and universities treat their current, former and prospective pupils and students, they do not deal with the relationship between pupils and students (e.g. bullying between pupils).

Duties under the EqA

Schools, colleges and universities are under a duty not to discriminate in relation to:

• admissions
• exclusions
• provision of education
• access to any benefit, facility or service
• any other detriment.

What is discrimination?

The EqA prohibits discrimination against pupils in the areas of education for a protected characteristic, which are:

• disability
• gender reassignment
• pregnancy and maternity
• race
• religion or belief
• sex
• sexual orientation.

Unlike other sectors, discrimination in education does not apply to the protected characteristic of:

• age
• marriage and civil partnerships.

What types of discrimination are there?

• direct discrimination
• discrimination arising from disability
• indirect discrimination
• failure to make reasonable adjustments
• harassment
• victimisation

What is direct discrimination?

Direct discrimination under the EqA is where a person is treated less favourably than another and the reason for the less favourable treatment relates to one of the protected characteristics.

For example:

• a school’s governing body reject a pupil with Tourette syndrome, as they believe the pupil could say something that would damage the school’s reputation – this amounts to direct discrimination and the protected characteristic in this case would be disability
• a college’s career placement team reject an Indian student for a placement with a construction company, as they believe the staff of the construction company could be racist towards him – this amounts to direct discrimination and the protected characteristic in this case would be race
• a university’s recruitment team reject an application for a man for the role of nurse lecturer, assuming that nurses are generally women and a man would be unsuitable for the role – this amounts to direct discrimination and the protected characteristic in this case would be sex

The direct discrimination provisions also apply where the less favourable treatment is caused by association with someone with a protected characteristic.

There is no requirement for actual disadvantage to be experienced for the treatment to be considered less favourable.

Intention is an irrelevant consideration in direct discrimination as is awareness of whether direct discrimination was taking place.

Comparators

Generally, in cases of direct discrimination, a comparator (that is, someone who has the same (or not materially different) circumstances to the person alleging discrimination) is required to assess whether the person with a protected characteristic has been treated less favourably than another person without a protected characteristic (that is, but for the protected characteristic, would the person have been treated in a certain way).

If it is not possible to identify someone who is an actual comparator, a hypothetical comparator can be used.

Exceptions

The following exceptions apply to education, if the protected characteristic is:

• disability, it is not discrimination to treat a disabled person more favourably than a person who is not disabled
• race, less favourable treatment includes segregating a person
• sex, a man cannot claim privileges received by woman in connection with pregnancy or childbirth
• sex, less favourable treatment of a woman includes because she is breastfeeding a baby over 6 months old in a non-work case.

What is discrimination arising from disability?

Discrimination occurs when a person has been treated unfavourably because of a factor arising from their disability (e.g. the need to take a period of disability-related absence) under the EqA. However, discriminatory treatment is justified if it can be shown that it was a proportionate means of achieving a legitimate aim.  This only applies where the education provider was aware the disabled person had a disability.

Where discrimination on the grounds of disability has been alleged in relation to admissions and exclusions, a claim that a governing body has discriminated against a pupil on the grounds of disability in an:

• admission decision, should be heard under the appeal arrangements set out in the School Standards and Framework Act 1998 rather than going to the First-tier Tribunal (Special Educational Needs and Disability) (FTT)
• exclusion decision, should be heard under the review arrangements set out in the Education Act 2002 as amended (which applies to exclusions in England) rather than going to the FTT.

What is indirect discrimination?

Indirect discrimination under the EqA occurs when a policy, criteria or practice (POC) applicable to everyone is shown to put those with a relevant protected characteristic at a disadvantage (this can be either a group of people or a particular individual).

It is not indirect discrimination if the education provider can show the POC was a proportionate means of achieving a legitimate aim. The intention behind a POC is irrelevant, indirect discrimination is still unlawful, unless it can be objectively justified.

The relevant protected characteristics concerning education are:

• disability
• gender reassignment
• race
• religion or belief
• sex
• sexual orientation.

For example:

• several Jewish pupils at a school want to undertake extra GCSE revision sessions offered by their school but are unable to do so because the classes are always held on Saturday afternoons, when the pupils are required to observe Shabbat. This amounts to indirect discrimination, unless the school can show that holding the revision sessions on Saturday afternoons is a proportionate means of achieving a legitimate aim.

Pool for comparison

Once it appears there is a particular POC putting pupils with a protected characteristic at a disadvantage, a comparative exercise must be undertaken, comparing the impact on pupils with and without the particular protected characteristic. Those used in this exercise are known as the pool for comparison.

For example:

• a secondary school makes plans for a series of meetings, for pupils to discuss their career options. These meetings are planned for Friday evenings. Booking the meetings on a Friday night is a neutral practice. A Jewish pupil points out that this would prevent them from attending as they observe Shabbat from dusk on a Friday evening. The pool for comparison could be all those pupils at the school. Assuming it affects a significant enough number of Jewish pupils, it is reasonable to assume that they would be placed at a particular disadvantage, so the school must either justify its practice or change the day to avoid acting unlawfully.

What is failure to make reasonable adjustments?

Education providers are under a general statutory duty to make reasonable adjustments for individuals with a disability under section 20 of the EqA where a PCP applied by education provider (or employer) or physical feature, places the disabled person at a substantial disadvantage.

The duty is also engaged where a disabled person would, but for the provision of an auxiliary aid, be put at a substantial disadvantage in comparison with those who are not disabled.

The duty to make reasonable adjustments applies to the education provider (or employer) in selection and interview procedures and the premises used for such procedures, as well as to offers, arrangements and conditions.

Failure to make reasonable adjustments cannot be objectively justified.

Duty to make reasonable adjustments

Education providers are under a number of additional duties in relation to the making of reasonable adjustments for disabled pupils, including:

• the specific duty on schools to make reasonable adjustments for pupils under Schedule 13 of the EqA
• under the special educational needs framework
• the duty on responsible bodies of schools to prepare and implement accessibility plans under Schedule 10 of the EqA
• the duty on local authorities to prepare and implement accessibility strategies under Schedule 10 of the EqA.

General duty to make reasonable adjustments

The general duty to make reasonable adjustments comprises up to three requirements:

• first requirement – where a PCP  puts a disabled person at a substantial disadvantage, there is a duty to take reasonable steps to avoid the disadvantage (e.g. to provide information in an accessible format such as Braille)
• second requirement – where a physical feature of a property puts a disabled person at a substantial disadvantage, there is a duty to take reasonable steps to avoid the disadvantage (e.g. removing, altering or providing a reasonable means of avoiding the physical feature such as, a feature of an approach to, exit from or access to a building)
• third requirement – where a disabled person would be at a substantial disadvantage without an auxiliary aid, there is a duty to take reasonable steps to provide the auxiliary aid (e.g. providing lesson information in an electronic mp3 format so visually impaired pupils can listen to them. There is no requirement in the EqA for the auxiliary aid to be available for the pupil to use in a wholly personal capacity).

Compliance with the general duty to make reasonable adjustments: schools

The general duty to make reasonable adjustments for educational establishments requires responsible bodies to take reasonable steps to comply with the first and third requirements set out in section 20 of the EqA.

This means schools are not required to remove, alter or provide a reasonable means of avoiding a physical feature of a property where it puts a disabled person at a substantial disadvantage (that is, in order to comply with the second requirement). Schools are instead required to comply with their planning duties in preparing accessibility plans.

In addition to complying with their duties under section 20 of the EqA, schools must also comply with the specific duties set out in Schedule 13 of the EqA.  However, Ofqual and other qualification bodies or regulators are given the power to specify where reasonable adjustments to general qualifications should not be made in order to ensure that qualifications give reliable indications of a particular pupil’s knowledge, skills and understanding.

The Equality and Human Rights Commission (ECHR) has published technical guidance specifically on schools’ duties to make reasonable adjustments for disabled pupils.

Definition of ‘reasonable’

There is no definition of what is reasonable in the EqA.

However, the technical guidance sets out some factors schools may take into account when deciding what adjustments are reasonable, these include:

• whether an adjustment would overcome the substantial disadvantage suffered by a disabled pupil
• the practicability of the adjustment – an adjustment which is easy and inexpensive to make will be found to be more reasonable than one which is difficult to make or expensive
• the effect of the disability on the pupil
• the financial and other costs of making the adjustment, the resources of the school and availability of financial or other assistance
• the extent to which support will be provided to the disabled pupil under the special educational needs regime
• health and safety requirements
• the need to maintain academic, musical, sporting and other standards and the interests of other pupils and potential pupils.

Schools’ duties under Schedule 13

Responsible bodies of education providers must make reasonable adjustments for disabled people to give them the same level of access enjoyed by other pupils and to help them avoid substantial disadvantage.

The duty is anticipatory, meaning that schools should consider and take reasonable steps to overcome any obvious barriers that may impede those with a disability. However, once a school is aware of a specific disability, further adjustments may be required.

Responsible bodies of schools are under a specific duty to make reasonable adjustments for disabled people concerning:

• admissions
• the provision of education (e.g. in relation to disciplinary action, disregarding behaviour from pupils which is a direct consequence of their disability such as, involuntary swearing from a pupil suffering from Tourette syndrome)
• access to a benefit, facility or service

Responsible bodies must also:

• when deciding whether it is reasonable to take a step to comply with the first, second or third requirements, have regard to the relevant code of practice issued by the EHRC
• when making a reasonable adjustment for a particular person, consider any request by that person to keep the nature and existence of their disability confidential

The duty to make reasonable adjustments exists alongside a school’s:

• planning duties
• duties concerning special educational needs (SEN)

Local authorities and schools must provide help to pupils with SEN or disabilities, where existing practices make it more difficult for them to learn or access education than most children of the same age. As part of this duty, local authorities must provide auxiliary aids to pupils with an education, health and care (EHC) plan. The duty to make reasonable adjustments still applies where a disabled pupil has an EHC plan, but it may be that the auxiliary aids provided by their local authority and the measures set out in their plan are sufficient.

However, where a disabled pupil does not have an EHC plan or a school fails to provide the pupil with the assistance they require, the duty to consider reasonable adjustments and provide any necessary auxiliary aids falls to the school as part of the third requirement to make reasonable adjustments.

Accessibility for disabled pupils

Schedule 10 of the EqA  sets out the accessibility arrangements local authorities and responsible bodies in schools must implement for disabled pupils. These are also known as schools’ planning duties.

Local authorities and responsible bodies of schools must prepare and further an accessibility strategy under the EqA. An accessibility strategy is a written strategy intended, over a prescribed period, to:

• increase the extent to which disabled pupils can participate in the curriculum (e.g. by making documents available in Braille).
• improve the physical environment of schools for disabled pupils to enable them to take advantage of education and benefits, facilities or services provided or offered (e.g. installing ramps to enable disabled pupils to enter classrooms)
• improve the delivery of information already readily available to able-bodied pupils, to disabled pupils within a reasonable time, and be delivered following consultation with parents and pupils.

What is harassment?

Harassment under the EqA occurs person engages in unwanted conduct related to a relevant protected characteristic and the conduct has the purpose or effect of violating another’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment.

The relevant protected characteristics concerning education are:

• age
• disability
• race
• sex.

Gender reassignment, religion or belief and sexual orientation are excluded for the purposes of harassment.

A person need not have the protected characteristic themselves, but they may have a connection with the protected characteristic.

When deciding whether the conduct has the purpose or effect of violating another’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment, the following issues must be taken into account:

• the perception of the person subjected to the harassment
• the other circumstances of the case e.g. the relationship between the harasser and the person being harassed
• whether it is reasonable for the conduct to have had that effect, which is an objective test.

Statutory defence

The responsible body for the education provider is liable for the actions of its employees and agents of the school, college or university unless it can show that it took all reasonable steps to prevent the discrimination, harassment or victimisation from taking place.

What is victimisation?

A person victimises another under the EqA if they subject them to a detriment because they have committed a protected act or believe they have committed or may commit a protected act.

A protected act includes:

• bringing proceedings under the EqA
• giving evidence or information in connection with proceedings under the EqA
• doing any other thing for the purposes of or in connection with the EqA
• making an allegation (whether or not express) that a person has contravened the EqA.

However, giving false evidence or information or making a false allegation is not a protected act, if the evidence or information is given or the allegation is made in bad faith.

Detriment

Detriment could include anything a person may reasonably consider changed their position for the worse or put them at a disadvantage.

For example:

• poor grades
• exclusion
• being subjected to disciplinary action
• being denied access to certain opportunities.

Role of the Equality and Human Rights Commission

Under the EqA the EHRC:

• has the power to apply to the court, if it thinks a person is likely to commit an unlawful act, for an injunction to prohibit them from committing that act
• can take action, even if no individual has been (or may be) affected by the unlawful act
• can conduct an investigation if it suspects a school committed an unlawful act
• following an investigation, can serve a notice requiring a school to prepare an action plan to avoid repeating or continuing an act or recommend it takes action for that purpose
• enter into a binding agreement with a school, if it suspects a school is committing an unlawful act, to avoid the contravention
• can assist a pupil taking enforcement action against a school.

What remedies are available for education discrimination?

The county court has the power to grant any remedy which could be granted by the High Court in tort proceedings or on a claim for judicial review (for this permission from the High Court is required), including:

• a declaration of the rights and responsibilities of the parties to the claim
• an injunction to prevent the repeating of the unlawful act in the future
• a quashing order
• damages to compensate for any loss suffered (including compensation for injured feelings)
• interest on damages
• costs.

The county court or sheriff must not make an award of damages  in case of indirect discrimination unless it first considers whether to make any other disposal.

Remedies other than the award of damages (that is, generally either an injunction or declaration) should not be granted where to do so would prejudice a criminal investigation or criminal proceedings.

Burden of proof and obtaining information

Where an allegation of discrimination, harassment or victimisation has been made under the EqA, the burden of proof is on the potential pupil or pupil. However, once facts have been established that suggest, in the absence of any other explanation, a breach of the EqA occurred, the burden of proof shifts to the school. The exception to this is if the proceedings in question relate to a criminal offence under the EqA.

How long do you have to bring a claim?

Under the EqA, education cases must be brought in the county court within 6 months (less 1 day) of the date of the act complained of or any other period that the county court or sheriff thinks just and equitable. When considering what is just and equitable a court is likely to consider:

• the length and reasons for the delay
• the extent to which the cogency of the evidence is likely to be affected
• whether the school has co-operated with any requests for information
• the speed with which the pupil acted once they knew of the facts giving rise to the claim
• the steps taken by the pupil to obtain appropriate professional advice once they knew of the possibility of taking action.

The act complained of will be treated as occurring either:

• at the end of a period of conduct which has been taking place over time
• in the case of a failure to do something, when the decision has been made to fail to do something.

However, for claims concerning higher or further education referred to a student complaints scheme within 6 months (less 1 day) or to the EHRC for conciliation, the time limit is 9 months.

Conciliation

It may be appropriate for a pupil to approach their school concerning unlawful treatment to see if the issue can be resolved directly. However, if this is unsuccessful, a pupil may choose to resolve the dispute by conciliation. The EHRC can provide conciliation services.

The material contained in this web page is provided for general purposes only and does not constitute legal or other professional advice. Appropriate legal advice should be sought for specific circumstances and before action is taken.