What is classified as a disability under the Equality Act 2010?
In order to establish this the answer can be found within section 6 of the act, which confirms that:
- You must have a physical or mental impairment;
- That has a substantial and adverse effect on your day to day activities; and
- It has lasted, or is likely to last, more than 12 months.
In the event that an individual’s condition meets this criteria, then it is likely that the condition shall meet the definition of a disability, under the Equality Act 2010.
Providers of education are under a duty not to discriminate against an individual directly, or indirectly, on the basis of their disability. A provider may also be expected to take positive action to ensure that an individual with a disability has equal access to their provision of services.
Who do education providers owe that duty of care to, and who would be deemed to be a pupil?
For the purpose of the Equality Act 2010, unlawful discrimination would relate to:
- Pupils attending a provider’s institution, which include those who are temporarily absent or excluded;
- Prospective pupils, such as those engaging in any admission process; and
- Former pupils, with whom there may be an existing relationship.
This includes all forms of education providers, including higher education, schools, colleges and nurseries.
Types of discrimination
The main forms of discrimination which education providers need to be aware of, in relation to ensuring that a pupil with a disability is not treated less favourably compared to those who don’t are:
- Direct discrimination
- Indirect discrimination
- Discrimination arising from a disability
- Failure to make reasonable adjustments
- Victimisation
- Harassment
For example, a pupil may pursue an education provider for a claim of discrimination arising out of their disability, and this could be for a reason such as the exclusion from a certain activity. However, some decisions and/or acts may be able to be justified within certain circumstances, if for example the decision was made for a legitimate reason and the decision was a proportionate means of achieving a legitimate aim. This means that the legitimate aim is concluded to have been essential and therefore proportionate to the discriminatory effect, in which it may have caused.
A duty to make reasonable adjustments could apply if a pupil needs the assistance of auxiliary aids for example, in order to access the provision of an education provider’s services. These aids could be in the form of additional staff assistance, the provision of written materials, electronic note making devices, or adjusted computer software.
Further, by way of example, an education provider of higher education could be under a duty in order to foresee reasonable adjustments which may be required to be made for pupils, including, prospective, current and former. This is known as an anticipatory duty, and an education provider may not be expected to anticipate all the needs of individuals who may use their service, however they may be required to take reasonable steps to ensure that those with disabilities are not impeded from accessing their services.
What to do if you receive a complaint of discrimination from a pupil
If an individual believes that they have been treated unfavourably and unlawfully discriminated against by your business/organisation or an employee who works for your business or organisation, they may take action against you. As an organisation/business you must act quickly if you receive a complaint of discrimination, or a formal letter before action. Please read the below for further details on dealing with complaints of discrimination as a service provider.
- What happens if a business fails to engage with a complaint of discrimination against them?
- Defending claims of indirect discrimination - the objective justification defence
- How can service providers defend discrimination claims?
It is advisable that businesses provide training to their employees on their obligations under the Equality Act 2010, especially those in relation to treating all service users equally, regardless of whether they have a disability.
If your business is accused of discrimination, our team can help you. Alternatively, if you believe that an education provider has failed to provide you with the adequate level of assistance which you require, and you wish to discuss your position, for a no obligation discussion with our specialist discrimination defence solicitors, call us on 0161 696 6170.
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