Understanding your school’s Equality duties

This page provides information on disability discrimination and aims to clarify the duties education professionals have in ensuring that children are not unfairly discriminated against in school.

This guide applies to both maintained schools and academies. 

The principal legislation governing this area is the Equality Act 2010. This makes it unlawful for an education provider to discriminate between pupils if they are under one of the protected grounds. These are disability, race, gender reassignment, pregnancy and maternity, religion or belief, or sex. For a condition to qualify as a disability it must have a long term and substantial effect on a person’s daily life.

Disability discrimination can be expressed in a variety of forms:

1. Direct discrimination

Occurs where a pupil is treated differently because of their disability. In all cases this is illegal. An example of this would be where a child is refused admission to a school on the basis of their disability.

2. Indirect discrimination

Occurs where a policy or rule places a child with disability at a disadvantage in participation or access in practice compared with other pupils. Indirect discrimination can be justified if a school can show that the discriminatory rule/provision exists for a legitimate reason and represents a proportionate method of achieving a legitimate aim. An example of this would be providing application forms in one format that may not be accessible to disabled pupils, such as students with a visual impairment. 

3. Discrimination arising from disability

Unfavourable treatment because of something connected to a disability. An example of this would be where a pupil is excluded as a result of committing an act, which is triggered by their disability.

4. Harassment

Occurs when a member of school staff engages in unwanted conduct that violates a pupil’s dignity or creates an intimidating, hostile, degrading, humiliating or offensive environment for a pupil. In general harassment should not take place, it becomes discriminatory if the harassment is based on a pupil’s disability.

5. Victimisation or subjecting them to a detriment because they do a protected act

Targeting a pupil or subjecting them to a detriment because they do a protected act, for example temporarily excluding a child because they have complained about a harassment relating to a disability.

6. Failure to make reasonable adjustments

Section 20 of the Equality Act 2010 states that the duty to make reasonable adjustments composes three requirements:

• 20 (3) Where a provision, criterion or practice of A’s puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.
• 20 (4) Where a physical feature puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.
• 20 (5) Where a disabled person would, but for the provision of an auxiliary aid, be put at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to provide the auxiliary aid.

Furthermore schedule 13 of the Act establishes that schools must comply with the first and third requirements.  It adds that this applies in matters of offering admission as well as the provision of education or access to a benefit, facility or service.

This phrase is commonly associated with discrimination issues. It is cited in The Equality Act and refers to the process of removing any barriers that may prevent disabled children from enjoying the same opportunities or providing assistance to guarantee equal footing.

When must reasonable adjustments be made?

When a child is disadvantaged by a practice or rule because of their disability or the failure to provide an aid, and it is reasonable to make the changes or provide the aid to remove the disadvantage.

The duty to make reasonable adjustments in education is anticipatory. This means schools must consider in advance what they need to do to make sure all disabled pupils can access and participate in the education and other benefits, facilities and services schools provide for their pupils. 

This can take place in relation to:

• admissions
• exclusions
• access to school trips
• attendance at school
• help and support in school
• Learning activities and materials.

When is an adjustment reasonable?

Whether an adjustment is reasonable will depend on all circumstances relevant to a particular case. While some adjustments will be fixed, other decisions may have to be made on a case by case basis.

Considerations may include:

• The child’s disability and what support, if any, they receive under a statement of special educational needs (SEN) or EHCP
• how practicable the changes are
• the resources of the school
• the cost of making the change or providing the aid
• if the change asked for would overcome the disadvantage the child experiences
• if there are other ways of overcoming the disadvantage
• health and safety considerations and the interests of other pupils.

What does the duty to make reasonable adjustments involve?

The Act states that the responsible body of a school must not discriminate against a person in its admission arrangements, in the provisions of education, in exclusions or by subjecting the pupil to any detriment.

From September 2012 schools and local authorities have a duty to supply auxiliary aids and services as reasonable adjustments where these are not being supplied through Special Educational Needs (SEN) statements, or an Education, Health and Social Care Plan (from 1^st September 2014), or from other sources.

 Examples of auxiliary aids include:

• A piece of equipment
• Assistance from a sign language interpreter, lip-speaker or deaf-blind communicator
• Extra staff assistance
• An electronic or manual note-taking service
• Induction loop or infrared broadcast system
• Videophones
• Audio-visual fire alarms
• Readers for people with visual impairments
• Assistance with guiding
• An adapted keyboard
• Specialised computer software

Objective Justification

In some circumstances a school can justify unfavourable treatment where they are able to demonstrate the treatment is necessary and proportionate to protect the child’s safety.

• The aim must be a real and objective consideration, and discriminatory.
• Could alternative measures have met the legitimate aim, without such a discriminatory effect? If proportionate alternative steps could have been taken, the unfavourable treatment is unlikely to be justified.
• Does the legitimate aim outweigh the discriminatory effects of the unfavourable treatment? If not, the unfavourable treatment should not be justified. The more discriminatory a measure, the harder it will be to justify.
• The burden is on the education provider to show that the unfavourable treatment was objectively justified.
• Whether there was objective justification is a matter for the tribunal. The tribunal is not limited to considering whether a reasonable education provider might have considered it justified.

What if a parent asks about making changes to the school building?

Schools don’t have to make changes to the physical features of the site or buildings. Instead the local authority and the school must publish and implement plans to improve the accessibility of schools. These plans must also set out how access to lessons, school activities and information will be improved for disabled pupils.

Bringing claims for disability discrimination

Parents should be referred to a legal professional or a support organisation for legal advice, the Child Law Advice Service can provide initial advice on this issue.

Teachers may wish to refer parents to the Civil Legal Advice for a legal aid assessment.

School claims should be brought within 6 months from the initial incident. However if a parent wishes to challenge a discriminatory decision which is having an ongoing effect outside of a 6 month time frame than this is equally possible.

Maintained schools/academies cases go to the  First Tier tribunal.

Cases relating to colleges should be referred to a county court.