The Equality Act 2010: a refresh on what it means for schools

Whilst the Equality Act 2010 has been in force for some time now, we nonetheless find that we are frequently providing advice to schools in respect of the application of the equality duties, and the duty to make reasonable adjustments.

The Equality Act applies to all maintained schools and academies in England and makes it unlawful to discriminate against, harass or victimise a pupil or potential pupil. This relates to the school’s admissions process, the provision of education, the provision of any benefit, facility or service and the school’s exclusions and sanctions process and procedures.

What behaviour is unlawful?

In ensuring that they do not breach the Equality Act, schools need to be mindful of the need not to directly or indirectly discriminate, harass, or victimise a pupil.

It is unlawful for a school to directly discriminate against a pupil or prospective pupil by treating them less favourably because of a protected characteristic, including because of a mistaken belief that they have a protected characteristic.

These protected characteristics are:

• Sex
• Race
• Disability
• Religion or belief
• Sexual orientation
• Gender reassignment
• Pregnancy or maternity.

In addition, discrimination by association, such as discriminating against a pupil because of the above characteristics of a family member, is also unlawful.

Whilst direct discrimination is fairly straightforward, indirect discrimination can be more complex. Indirect discrimination occurs where a “provision, criterion or practice” is broadly applied, putting a pupil with a protected characteristic at a disadvantage.

Schools should be particularly aware of the risk of indirect discrimination during all aspects of school life, and when putting in place policies and procedures. For example, observant Jewish parents may find it challenging to attend a parents’ meeting held on a Friday evening.

However, indirect discrimination can be defended if it was “a proportionate means of achieving a legitimate aim”. This means both that the reason for the practice is legitimate and that the intended aim could not reasonably have been achieved in a different way to avoid indirect discrimination.

Harassment and protected characteristics

Harassment is “unwanted conduct, related to a relevant protected characteristic, which has the purpose or effect of violating a person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that person”. This covers unpleasant and bullying behaviour but could extend to actions which cause offence because of a protected characteristic.

It is important to note that harassment only applies in schools when it relates to disability, race, sex or pregnancy and maternity; it does not apply in respect of religion or belief, sexual orientation or gender reassignment. However, bullying or harassing pupils with these protected characteristics could still be unlawful on the grounds of direct discrimination, rather than harassment. Whether a successful claim is commenced on the ground of direct discrimination or the ground of harassment, in either event the court can award an appropriate remedy including an award of damages.

Finally, victimisation is treating a pupil less favourably because of something they have done in connection with the Equality Act, for example making an allegation of discrimination or giving evidence in support of another person.

In addition, a pupil must not be victimised because of something done by their parent or a sibling in relation to the Equality Act, for example if their parent has made a complaint of discrimination against the school.

Disability discrimination

Schools should be aware that there are particular obligations in respect of disability discrimination. Schools are able to, and in some cases must, treat disabled pupils more favourably than non-disabled pupils.

When setting policies and procedures, schools must be cautious not to implement whole school policies which are more likely to adversely impact disabled pupils, unless it can demonstrate that it has a legitimate reason to do so, and the policy is a proportionate means of achieving that legitimate aim. Further, schools must be aware of the need to not discriminate against a disabled pupil because of something that is a consequence of their disability. However, again, this can potentially be justified if it is a proportionate means of achieving a legitimate aim.

Reasonable adjustments

Schools will be aware that they have a specific duty to make reasonable adjustments in respect of pupils with disabilities, and where something a school does places a disabled pupil at a disadvantage, the school has a duty to take reasonable steps to try and avoid that disadvantage.

Schools are expected to provide an auxiliary aid or service for a disabled pupil when it would be reasonable to do so and if doing so would alleviate any substantial disadvantage to the pupil. However, there is no requirement to alter physical features of the school, as this is already considered as part of the school’s planning duties.

A failure to make a reasonable adjustment cannot be justified, and so long as an adjustment is reasonable then it should be made. Schools not only have to consider reasonable adjustments on a pupil-by-pupil basis, but also need to have regard to potential adjustments which may be needed more broadly.

This does not mean that schools must make adjustments for every imaginable disability, but they do need to consider general reasonable adjustments, such as being prepared to provide different coloured paper for pupils with a visual impairment.

Schools can sometimes find it challenging to balance whether an adjustment is ‘reasonable’. When making this deliberation, the school can take into account the resources which will be required, the effectiveness of the adjustment, and any impact on other pupils or on health and safety requirements. The school can also consider whether any aids have been made available pursuant to, for example, a pupil’s Education, Health and Care Plan.

Public sector equality duty

Public bodies, including maintained schools and academies, must also have regard to the public sector equality duty (“PSED”). This places an obligation on schools to:

• Eliminate discrimination and other conduct that is prohibited by the Equality Act
• Advance equality of opportunity between people who share a protected characteristic and those who do not
• Foster good relations across all characteristics.

One of the core outcomes of the PSED is ensuring that the local community can see how a school is advancing equality in line with the PSED, and what objectives it is using to make this happen. To achieve this schools are required to publish information to demonstrate how they are complying with the PSED and publish equality objectives.