Equality Act 2010 Guidance On Higher Education – Tackling Discrimination
The Law Of… Complying With The Equality Act
The Equality Act 2010 Technical Guidance on Further and Higher Education offers some useful insights on discrimination.
It states that people should not be discriminated against in further or higher education on the basis of any of the protected characteristics set out in the Equality Act.
This applies when they're seeking admission to further or higher education, in education, or are excluded from further or higher education.
Gregg Burrough, Solicitor in Education Law and Community Care, takes a look at what this means, the type of factors that colleges and universities have to consider and how discrimination is viewed under the Equality Act 2010.
Under the Equality Act, it's unlawful for someone to discriminate against you on the grounds of:
- Gender reassignment
- Pregnancy and/or maternity
- Marital status
- Sexual orientation
These are known as the 9 protected characteristics.
Regulating Different Types Of Conduct
The Equality Act 2010 regulates various types of conduct in the context of education, including behaviour relating to:
- Direct discrimination
- Indirect discrimination
- Discrimination arising from disability
- Failure to make reasonable adjustments for people with disabilities
What Is Direct Discrimination?
Direct discrimination occurs when a person treats another person less favourably than they would treat someone else because of a protected characteristic. For example, not inviting a university student with a disability on a trip relating to their course as none of the activities were made accessible for them.
Although direct discrimination is generally unlawful, there are certain circumstances when it may be lawful, such as where a disabled person is treated more favourably than a non-disabled person (under paragraph 4.33 of the Technical Guidance).
In order to establish how someone has been treated less favourably, the Equality Act states that a comparison must be made between how a college or university has treated the individual and how they would have treated someone else in similar circumstances.
What Is Indirect Discrimination?
Indirect discrimination occurs when an institution applies a 'provision, criteria or practice' that puts a person with a disability at a particular disadvantage in comparison to others. The Equality Act does not define what is meant by 'provision, criteria or practice', but the concepts are identified as broad and inclusive.
The Technical Guidance highlights that this may include 'the way in which education or access to the facilities was offered, or one of the proposals to do something a certain way.'
It also highlights that discrimination arising from a disability may occur where a person, for example a teacher, treats a disabled student less favourably because of something arising from their disability and they cannot show that the treatment is a proportionate means of achieving a legitimate aim.
But, this form of discrimination cannot be established if the person responsible for the unfavourable treatment was not aware – and should not have reasonably been expected to be aware – that the student had a disability.
Discrimination Arising From Disability
Education providers have a duty not to treat disabled students unfavourably for a reason arising from their disability.
Protection from this type of discrimination only applies to people with disabilities.
The Equality Act states that discrimination relating to someone's disability occurs where:
- An education provider treats the disabled student unfavourably
- This treatment is because of something arising from a student’s disability
- The education provider cannot show this treatment is a proportionate means of achieving a legitimate aim unless the education provider does not know and could not have known that the student has a disability
For discrimination arising from disability to occur, a disabled student must have been treated unfavourably. This means that he or she must be at a disadvantage. Often, the disadvantage will be obvious and it will be clear that the treatment has been unfavourable, for example a student may have been refused admission to a course or excluded from an institution.
Being denied a choice or excluded from an opportunity is also likely to be unfavourable treatment.
Failure To Make Reasonable Adjustments
Under the Equality Act, universities have a duty to make reasonable adjustments for disabled students and a failure to comply with this duty amounts to unlawful discrimination.
There are 3 requirements when it comes to making reasonable adjustments:
- Where a 'provision, criterion or practice' applied by or on behalf of the university puts a student at a disadvantage in relation to a relevant matter compared to people who aren't disabled, it must take reasonable steps to avoid the disadvantage
- Where a 'physical feature' puts someone with a disability at a disadvantage in relation to a relevant matter compared to people who aren't disabled, the university must take reasonable steps to avoid the disadvantage
- Where a disabled person would 'but for the provision of an auxiliary aid' be put at a disadvantage in relation to a relevant matter compared to people who aren't disabled, the university must take reasonable steps to provide the auxiliary aid
To successfully demonstrate a failure to make reasonable adjustments, it is necessary to identify the 'provision, criterion or practice' in respect of which it is said that a reasonable adjustment could and should have been made.
The Technical Guidance sets out factors that are likely to be taken into account when considering what adjustments are reasonable to make, for example for a further education college or university. These include the extent to which the resources of the institution, financial support or other types of assistance are available. It also includes things such as the financial cost of making the adjustment and the effect of the disability on the individual.
"Making reasonable adjustments is a continuing duty", Gregg explains.
"Education providers should keep the duty and the ways that are meeting the duty under regular review in light of their experience with disabled students."
Dealing With Discrimination
Students who believe that their education provider has committed an unlawful act against them may bring civil proceedings. But, if you're a student and you think that you have a claim against an education provider, it may be helpful to question them before starting proceedings and to see whether the matter can be resolved, for example via a complaints procedure. It may also be sensible to use dispute resolution before taking the matter to the courts.
Higher education institutions in England should have internal complaints procedures in place. Students at universities or higher education institutions in England and Wales can also make a complaint to the Office of the Independent Adjudicator (OIA) if they have exhausted their internal complaints procedure.
Time Limits On Taking Court Action
Court action must be started within 6 months (minus one day) of the unlawful act. If the proceedings are not brought within that period, the court can still hear the proceedings if it thinks it is just and equitable to do so.
In England and Wales, the county court has the power to award a wide range of remedies. This can include damages to compensate for any loss suffered by the person bringing the claim, or a declaration of the rights and responsibilities of the parties to the claim, amongst others.
How Can Simpson Millar's Education Team Help Me?
If you believe that you've been discriminated against and have already tried to resolve the matter with your university or college, speak to one of our Education Law team about what action you can take next.
We can help identify whether you've experienced direct or indirect discrimination and take steps to deal with the problem, without necessarily getting the courts involved.