Equality Act 2010 – discrimination and your rights
When are you protected from discrimination?
Discrimination means treating you unfairly because of who you are. The Equality Act 2010 protects you from discrimination by:
- businesses and organisations which provide goods or services like banks, shops and utility companies
- health and care providers like hospitals and care homes
- someone you rent or buy a property from like housing associations and estate agents
- schools, colleges and other education providers
- transport services like buses, trains and taxis
- public bodies like government departments and local authorities
There are nine protected characteristics in the Equality Act, Disability is one of the protected characteristics. Discrimination which happens because of one or more of these characteristics is unlawful under the Act.
A child or young person is disabled under the Equality Act 2010 (section 6) if they:
‘… have a physical or mental impairment which has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities. This is actually a low test to meet as “substantial” means more than minor or trivial and “long term” means lasting more than one year or likely to last more than one year.’
Not all children or young people with special educational needs will be disabled and not all disabled children or young people will have special educational needs. The vast majority however will fall under both legal definitions.
The ‘responsible body’
A ‘responsible body’ is a LA or school/college governing body and is legally responsible for discrimination, harassment and victimisation carried out by its employees. Early years settings, schools, colleges and local authorities (“LAs”) have clear legal duties to act to prevent unlawful discrimination, whether directly or indirectly. They must ensure that they do not treat children and young people with disabilities less favourably than others.
A school’s duty to its pupils goes beyond just the formal education, it provides and covers all school activities such as extra-curricular and leisure. It does not matter whether a school knew about or approved of those acts. An employee of a school is personally responsible for their own acts of discrimination, harassment or victimisation whether or not the employer is also liable. However, an employee cannot be personally liable in relation to disability discrimination in schools.
The pupils covered by the schools provisions are:
- pupils at the school (including those absent or temporarily excluded
- former pupils (if there is a continuing relationship based on them having been a pupil at the school)
- prospective pupils
The responsible body of a school must not discriminate against a pupil:
- in admissions
- in the way it provides education for the pupil
- in the way it provides access to a benefit, facility or service
- by not providing education for the pupil
- by not affording the pupil access to a benefit, facility or service
- by excluding the pupil from the school
- by subjecting the pupil to any other detriment
The law applies equally to what happens at break and lunch-times as well as to what happens during lessons and covers school related activities such as school clubs, after school clubs, sports activities and school trips.
The responsible body has a duty to make reasonable adjustments – to change what they do or were proposing to do – to ensure a disabled child or young person is not disadvantaged. This includes the provision of aids and services to support a child or young person. This is an anticipatory requirement owed to disabled pupils generally and therefore schools need to think in advance about what disabled pupils might require and what adjustments might need to be made for them.
This duty does not depend on knowledge of a particular pupil’s disabilities, though lack of knowledge may impact on what is reasonable for a school to do in particular circumstances.
If a school has failed to make a reasonable adjustment which would have prevented or minimised the unfavourable treatment, it will be very difficult for them to show objectively that the treatment was justified.
A claim of disability discrimination against a school of any type (whether state funded or independent) can be made to the SENTW (Special Educational Needs and Disability Tribunal Wales. A claim against a Further Education College or Local Authority is brought in the County Court.
Discrimination can come in one of the following forms:
- direct discrimination – treating someone with a protected characteristic less favourably than others
- indirect discrimination – putting rules or arrangements in place that apply to everyone, but that put someone with a protected characteristic at an unfair disadvantage
- harassment – unwanted behaviour linked to a protected characteristic that violates someone’s dignity or creates an offensive environment for them
- victimisation – treating someone unfairly because they’ve complained about discrimination or harassment
Discrimination by association
The Act also protects you if people in your life, like family members or friends, have a protected characteristic and you’re treated unfairly because of that. This is called discrimination by association. For example, if you’re discriminated against because your son is gay.
If you complain about discrimination
The Equality Act protects you if you’re treated badly because you’ve complained about discrimination or stood up for discrimination rights, either for yourself or for someone else.
Further help and information
Equality Advisory & Support Service
SENTW – Special Educational Needs Tribunal Wales
Helpline: 01597 829800 ~ E-mail: SENTW@wales.gsi.gov.uk