Further and higher education in the Equality Act - more detail

Part 6 of the Equality Act 2010 covers disability discrimination in education. A student has the rights if his or her stammer is a "disability" as defined in the Equality Act - or, for direct discrimination or harassment, if they are perceived to have a disability. Link to Overview on further and higher education. There are different rules for Northern Ireland.

Note: this page covers the Equality Act 2010 position from 1st October 2010. See also pre-Equality Act position and Which Act applies: Equality Act or DDA?

Introduction
What institutions are covered?
What activities are covered?
'Discrimination'
Reasonable adjustments
Examinations and assessments
Who is liable?
If there is discrimination
Links

Introduction

Codes of Practice

The '2007 Code' on this page means the Code of Practice (revised) for providers of post-16 education and related services (link to EHRC website), dated 2007. This includes changes to the law which took effect in September 2006. The 2007 Code is still in force.
There is not yet a Code of Practice updated for Equality Act 2010, but there is a consultation draft of one: see draft Further and Higher Education Code (link to EHRC website). I shall refer to this as the '2010 draft Code'.

A Code of Practice is not an authoritative statement of the law - it is for the courts to interpret the law. However, courts must take into account any part of the Code that appears relevant.

There are further resources on the EHRC website: 'Disability in Education'.

What institutions are covered?

Institutions covered

Universities and further education institutions are covered. This includes sixth form colleges. (There are more detailed rules in EqA s.91 with s.94, explained in para 10.2 of the 2010 draft Code.)

This page focusses on universities and further education institutions within s.91. However, broadly similar rules also apply to the following:

a local authority in England or Wales securing a course of higher and further education, including adult and community education. In Scotland, it is an education authority securing a course of further education. (EqA s.92, and Chapter 11 of 2010 draft Code)
a maintained school providing a course of further education under s.80 School Standards and Framework Act 1998 (EqA s.92, and Chapter 12 of 2010 draft Code.)
recreational or training facilities provided by local authorities under certain statutory provisions. In Scotland it is these facilities provided by education authorities. (EqA s.93, and from para 11.15 of the 2010 draft Code.)

Excluded (but likely to be covered elsewhere in the Equality Act)

Not normally covered by the rules on further and higher education (Part 6 Chapter 2 of the Equality Act) are:

schools in respect of provision to their pupils, even pupils over 16. They are covered by the specific rules for schools; and
private colleges and training providers. They are likely to be subject to the general rules on provision of services.

Local authority activities which are not covered by s.92 or s.93 are likely to be within the Equality Act either as a provision of services to the public or as a public function. Similarly, services or functions by any other body or company are likely to fall within some part of the Equality Act.

What activities are covered?

Harassment example (2007 Code):

"A student with a stammer feels he is being harassed because his lecturer makes constant jokes about people with speech impairments. He asks his lecturer to stop doing this, but the lecturer says he is being 'oversensitive' as he habitually makes jokes about many different sorts of people. This is likely to amount to harassment because making remarks of this kind should reasonably be considered as having either of the effects mentioned [in para 7.13] above. Para 7.15

From 2007 Code of Practice: Post-16 Education.

The legislation is wide. In summary, it covers discrimination and harassment -

as regards admission to the educational institution, including arrangements for this,
against students of the institution, and
in respect of qualifications (see below), including non-students
(EqA s.91(1)).

A student is anyone "for whom education is provided by the institution" (EqA s.94(3)). Protection for students is not limited to educational matters but extends, for example, to any "benefit, facility or service" for a student. So it should include arranging study abroad, outings and trips, research facilities, distance learning, libraries, careers advice and training, leisure facilities, welfare/counselling facilities and more. There is a long list of examples in para 10.26 of the 2010 draft Code.

Services provided other than to students, such as commerical conference facilities or commerical research and consultancy, are likely to fall within Part 3 of the Equality Act, the general provision of services rules. Services and facilities for staff are covered by Part 5, the employment provisions.

Work placements

Both universities/colleges and work placement providers fall within the Equality Act as regards work placements. See further Employment services: Work placements. See also EHRC guidance: Work placements (link to EHRC website).

In 2002 the DfES published a good practice guide for further and higher education institutions: Providing Work Placements for Disabled Students (external link).

What is 'discrimination'?

Meaning of 'discrimination'.

What counts as discrimination is discussed on my discrimination page. I outline below just some of the types of discrimination, putting them in the context of higher and further education.

'Direct discrimination' examples:
(from the 2007 Code, but should still apply under Equality Act)
"A student with a speech impairment is studying for a politics degree. A lecturer does not enter the student as a candidate for a debating session because he assumes that students with speech impairments would have difficulty participating. Although the lecturer had good intentions when making this assumption, the effect was to treat the disabled student less favourably on the grounds of his disability. The act of direct discrimination in this case is the assumption that anyone who has a speech impairment would have difficulty participating in a debating session, effectively rejecting a whole category of people with no consideration for their individual abilities." Para. 4.7.

"In [a previous example where a woman with cerebral palsy was not accepted onto a course in car maintenance due to lack of manual dexterity] the speech of the applicant is also affected by her cerebral palsy. The course does not require clarity of speech. The comparator in a claim for direct discrimination would be an applicant with a similar level of manual dexterity but it would not be necessary for the comparator to have a speech impairment (because the way in which the applicant speaks is not relevant to the applicant's ability to do the course)." Para. 4.13.

'Disability-related discrimination' examples:
(from 2007 Code on the DDA, but similar to 'discrimination arising from disability' under Equality Act 2010)

"A student with cerebral palsy which affects her speech, is working on her thesis for her research degree. Her personal tutor avoids supervision sessions for individual discussion with the disabled student because the sessions take longer than with other students due to her slow speech. Although there is no other student undertaking the same course, the department's protocols for research degrees suggest that all personal tutors should hold regular supervision sessions with research degree students. The student can point to this policy as an example of how other research degree students would be treated." Para 6.8

"A man with a medical condition that causes fatigue and subsequent loss of speech control applies to a university for a postgraduate degree. The application form does not ask whether he has a disability nor whether he would have any particular needs when attending interview. He attends an interview, during which he is very listless and his speech is very slurred because he is tired from the journey, and the selectors turn him down because of this. He mentioned at the interview that he felt tired but the panel ignored this. The selectors' treatment of the applicant is likely to be unlawful." Para 6.11

From 2007 Code of Practice: Post-16 Education.

Direct discrimination

The importance of direct discrimination is that the institution has no 'objective justification' defence - the institution cannot claim its action was a proportionate means of achieving a legitimate end.

Basically, the test for direct discrimination is whether the person was treated less favourably because of a disability as compared with someone who does not have that particular disability and whose relevant circumstances, including their abilities, are the same or not materially different. Direct discrimination is discussed in more detail in Chapter 4 of the 2007 Code and of the draft 2010 Code, and on my website under employment.

An example of direct discrimination may be where the institution makes generalised or stereotypical assumptions about a disability or its effects. The 2007 Code points out that an institution would not normally make such assumptions about a non-disabled person, but would instead consider his individual abilities (para 4.5 of 2007 Code). Para 4.7 of the 2007 Code gives an example of this about a speech impairment, where the student is not entered as a candidate for a debating session because of the lecturer's assumptions (see box). The example also illustrates the idea that direct discrimination need not be conscious - people may hold prejudices that they do not admit, even to themselves.

Para 4.13 of the 2007 Code (see box) uses an example about clarity of speech to illustrate that the comparator need only have the same circumstances and abilities so far as these are relevant to the matter to which the treatment relates. So, for example, if the less favourable treatment is that the person was was not admitted to a course and the way he speaks is not relevant to his ability to do the course, his treatment is compared with how someone without a speech impairment would be treated.

'Discrimination arising from disability', and 'indirect discrimination'

Here the institution may have an 'objective justification' defence if it shows that what it did was a proportionate means of achieving a legitimate aim. For 'discrimination arising from disability' there may also be a defence if the institution did not (and could not reasonably be expected to) know of the disability.

Apart from the 'objective justification' defence, these types of claim are much wider than 'direct discrimination'. For example, if the reason for less favourable treatment is that a person takes longer to speak, and this is due to his or her stammer, it is likely to be 'discrimination arising from disability' unless the objective justification defence is shown to apply (example in para 8.12 of the 2007 Code, albeit on previous legislation - see box. This example also illustrates that a disabled person does not have to show that others were actually treated more favourably).

For more on 'discrimination arising from disability' and 'indirect discrimination', see my Discrimination page.

Duty to make reasonable adjustments

Duty

This duty is very important. Broadly, an institution needs to make adjustments to what it would normally do so far as reasonable to meet the requirements of disabled people.

The duty includes adjustments where a provision, criterion or practice puts disabled people at a substantial disadvantage; physical features of premises; and provision of auxiliary aids and services. It extends to admission arrangements, and also education or other benefits, facilities or services for students (EqA s.20 and Sch 13).

'Substantial' disadvantage means only 'more than minor or trivial' (EqA s.212(1)).

Competence standards are not included in the reasonable adjustment duty. There is also a reasonable adjustment duty relating to qualifications. See Examinations and assessments below.

There are some examples of adjustments for students who stammer on the De Montfort University website - Working with students who stammer (pdf - external link).

Duty is anticipatory

The duty is anticipatory, owed to disabled persons in general. This means it does not only arise when a disabled individual presents himself. The provider should anticipate the requirements of disabled applicants and students and the adjustments that may have to be made for them (draft 2010 Code, from para 7.19).

There is discrimination only when failure to take steps leads to the detriment of a particular individual. However, the fact that providers should be reasonably anticipating needs means that in deciding the extent of the duty, one does not look only at what could reasonably be done on an ad hoc basis for the particular person. An example of anticipating adjustments could be arranging disability awareness training for staff (cf para 5.11 of 2007 Code).

The reasonable adjustment duty is not anticipatory as regards qualifications for people who are not students at the institution (though the related 'indirect discrimination' is). See Examinations and assessments below.

Is knowledge of disability required?

The draft 2010 Code, para 7.21 -7.22, says that because the reasonable adjustment duty is owed to disabled students at large, it applies regardless of whether the education provider knows that a particular person is disabled or whether it currently has disabled students. It also says that an education provider should do all it can reasonably be expected to do to find out whether a student is disabled and requires reasonable adjustments, pointing to a good practice guide published by the then DfES: Finding Out About People's Disabilities: A Good Practice Guide for Further and Higher Education Institutions (DfES/0024/2002) (link to lifelonglearning.co.uk).

Confidentiality requests

There is a special rule on "confidentiality requests". If the disabled person has made a request for the nature or existence of the disability to be treated as confidential, and the institution is aware of the request, then in deciding whether a step is reasonable, regard is had to the extent to which the step is consistent with complying with the request (EqA Sch 13 para 8, draft 2010 Code from para 7.29).

How are exams and assessments affected?

Link to Oral assessments, and assessed presentations for examples of what can be done to help people who stammer, and a less technical summary of the Equality Act rules.

Examination and assessment examples:
(from the 2007 Code, but should still apply under Equality Act)
"A requirement that a person completes a test in a certain time period is not a competence standard unless the competence being tested is the ability to do something within a limited time period." Para 5.74

"The entrance requirements for a GCSE French course state that applicants 'must be able to speak clearly'. This requirement could unjustifiably exclude some people whose impairments result in a significant effect on their speech." Para 8.7

"An adult education college states that it requires a level of English language fluency for entrance onto its courses and specifies a particular test of language fluency that it will accept. An applicant with a speech impairment found that this particular test did not allow for additional time to be given, and as a result she scored much lower than she should have done on the test. The college would be unable to justify rejecting her for not having the required test result if she could show through an alternative test that she had the relevant level of fluency required." Para 8.12

"A college sets applicants for a higher level language course a short oral exercise. A person with a speech impairment is given additional time to complete the exercise. This is likely to be a reasonable adjustment." Para 8.31

"A further education college confers its own qualifications for a course in travel and tourism. One of the criteria for passing the course is 'speaking clearly in a customer services environment'. A disabled student whose impairment affects her speech does not achieve the qualification because of this criterion. Applying this standard may be unlawful." Para 9.19.

Slow writer not being allowed twice as long for a shorthand test, as speed is likely to be a competence standard for shorthand. Para 9.24

Possible additional exam time for student with dyslexia. Para 9.31

Viva for deaf student - sign language interpreter and additional time as reasonable adjustments. Para 9.34

From 2007 Code of Practice: Post-16 Education.

In summary

In general the normal types of claim apply - they are listed on my Discrimination page. They apply to students of the university or other institution. There are also provisions which, as regards qualifications, extend protection to disabled people who are not students at the institution.

However the rules are altered as regards competence standards. In summary:

the process of assessing a competence standard, but not the standard itself, is subject to the reasonable adjustment duty, and
unless unlawful as direct discrimination, the competence standard itself is subject to 'objective justification' test, namely whether it is a proportionate means of achieving a legitimate aim.

What is a competence standard?

A competence standard is a standard - academic, medical, or otherwise - for the purpose of determining whether a person has a particular level of competence or ability (EqA Sch 13 para 4(2)). This is discussed from para 5.71 in the 2007 Code, and from para 7.34 in the draft 2010 Code.

The 2007 Code says at para 9.19 that a competence standard which results in direct discrimination is not a genuine competence standard and education providers who apply such standards will be acting unlawfully. It gives the example of a requirement to be able to speak clearly in order to pass a travel and tourism course, as quoted in the box.

Reasonable adjustments and competence standards

There is a duty to make reasonable adjustments to the process by which competence is assessed, but not to the application of a competence standard (para 5.75-5.79 of 2007 Code, para 7.38-7.43 2010 draft Code). It is EqA Sch 13 para 4(2) which says that the reasonable adjustment duty does not apply to competence standards.

Sometimes the process of assessing whether a competence standard has been achieved and the standard itself are inextricably linked. For instance, ability to speak French cannot be tested in writing.

By way of another example, it seems a requirement for a test to be completed in a certain time period is not a competence standard unless the competence being tested is the ability to do something within a limited time period (example in para 5.74 of 2007 Code - see box). Accordingly:

if ability to do something within a limited time period is not the competence being tested, the reasonable adjustment duty could apply to require more time to be allowed for the test;
if ability to do something within a limited time period is the competence being tested, the reasonable adjustment duty does not apply to the time allowed, but that competence standard must be 'a proportionate means of achieving a legitimate aim' - if it disadvantages people who stammer ('objective justification' test below).

Para 8.31 of the 2007 Code includes "allowing a disabled person extra time to complete the test" as an example of an adjustment which may be reasonable. There is also an example in the same paragraph about extra time being allowed for an oral exercise given to applicants for a higher level language course (in box).

For more examples of where adjustments can and cannot be required as regards speech, see also the similar rules on trade/professional qualification bodies and general qualification bodies.

There are some examples of adjustments on the De Montfort University website - Working with students who stammer (pdf - external link).

The reasonable adjustment duty is not the only type of discrimination claim that can apply to how standards are assessed. In particular 'discrimination arising from disability' and indirect discrimination can also be relevant. For those, the main potential defence will be if the examining body shows that what it did meets the 'objective justification' test, ie that it was a legitimate means of achieving a legitimate aim.

Justification of competence standards

With the exception of the reasonable adjustment duty, the various types of discrimination claim can still apply to a competence standard, in particular 'indirect discrimination' and (subject to the knowledge requirement) 'discrimination arising from disability'. Both these are subject to the 'objective justification' defence, namely whether the competence standard is a proportionate means of achieveing a legitimate aim. That is therefore the main test for whether a competence standard disadvantaging disabled people is lawful. Assuming there is no direct discrimination, if the institution setting the exam can show the objective justification defence applies, the competence standard is lawful even though it disadvantages disabled people.

There is much case law and guidance on what is needed to meet the objective justification defence. See my 'objective justification' defence page, and there is more detail - specifically in the context of further and higher education - in para 5.25-5.40 and 6.11-6.12 of the 2010 draft Code.

Admission criteria

These rules on competence standards also apply to criteria for admission to a course. If the institution says people must meet a particular competence standard to enter a course and this disadvantages disabled people, the institution must be able to show that the objective justificationd defence applies, in other words that imposing the standard is a proportionate means of achieving a legitimate aim. (But the 'reasonableness' test of the reasonable adjustment duty does not apply.)

Draft 2010 Code, para 7.34
The admission criteria for a course in choreography include a requirement to demonstrate 'a high level of physical fitness'. The course itself, however, is predominately theory-based and does not involve any strenuous physical activity. This is unlikely to be a competence standard.

See also the example on English language fluency at para 8.12 of the 2007 Code - in box

Generally, including unnecessary or marginal requirements for entry to a course can lead to discrimination. Para 8.7 of 2007 Code gives the example of a requirement to be able to speak clearly (see box).

External examining bodies

In some cases an external examining/awarding body or professional body is involved. Trade/professional qualification bodies have duties under Part 5 Equality Act 2010 (employment), broadly similar to the rules above applying to exams. Other examination bodies are subject to another set of rules applying GCSEs, A-levels etc,

The further or higher education provider is only liable for itself and its agents, not for an independent examining body. Even so, an institution is still likely to have some obligations where an external body is involved (eg para 9.29 of 2007 Code, and examples in the Code applying before Sept 2006).

Who is liable?

An institution is only liable for itself and its agents, not eg for a separate examining body (but see previous paragraph) or business (see work placements above).

The legislation does not talk in terms of the educational institution. Strictly, it is the institution's "responsible body" (as defined) which is made liable under the Equality Act. This will often be the governing body. For simplicity I generally talk about about the "institution" or "provider" rather than the "responsible body ".

The responsible body is responsible for anything done by employees in the course of their employment, or by agents acting within their authority. In the case of discrimination by an employee, the responsible body does have a defence if it took such steps as were reasonably practicable to prevent the actions (para 11.5-11.12 of 2007 Code, para 3.25 to 3.29 of draft 2010 Code).

Even if the responsible body has a defence, agents and employees may be personally liable (para 11.13-11.17 of 2007 Code, para 3.30-3.33 of 2010 draft Code).

There are also rules against people aiding, instructing, causing or inducing discrimination (para 3.34-3.48 of 2010 draft Code).

For the more on the provisions dealing with these issues, see my page Discrimination: who is liable under the Equality Act.

If there is discrimination

Remember you can contact the Equality and Human Rights Commission helpline. See also my page on sources of help and advice.

Internal complaints procedures, and external adjudicator

It is often sensible to attempt to resolve disputes without resorting to legal proceedings. A complainant may want to raise a complaint directly with the education provider. Many providers have complaints procedures which aid speedy resolution. However, the six month time limit for putting in a formal claim to the court needs to be watched - a complaint to the education provider does not count as a formal claim.

Higher education students in England and Wales can take complaints to the Office of the Independent Adjudicator (www.oiahe.org.uk) which is an independent student complaint scheme. Normally internal procedures must have been exhausted. (For students in Scotland, see the Scottish Public Services Ombudsman: www.spso.org.uk.)

Conciliation / mediation

You could approach the EHRC helpline and ask to be referred to the Equalities Mediation Service: www.equalities-mediation.org.uk. This free service is likely to be an easier and cheaper approach than going to court. For the service to be used, there must be a referral from the EHRC and the service provider must agree.

There is an equivalent conciliation service for Northern Ireland: Disability Conciliation Service Northern Ireland (link to equalityni.org) operated by the NI Equality Commission.

Questions procedure

There is a questions and replies procedure for cases on education, as for employment cases. This procedure may be used by complainants, prospective or otherwise, in deciding whether to bring a claim, and how to formulate and present a case most effectively. (2010 draft Code from para 15.27)

Shift in burden of proof

There is a rule that the burden of proof shifts to the education provider if the claimant makes out a prima facie case. I say more on this in the context of employment. It is dealt with in the 2010 draft Code from para 15.32.

Going to court

Complaints can be taken to the County Court in England and Wales, or Sheriff court in Scotland (EqA s.113). The judge will normally need to appoint an 'assessor' to help or her. Assessors are people of skill and experience in discrimination issues who help to evaluate the evidence (para 15.14-15 of 2010 draft Code).

The time limit to make a claim is generally six months (less one day) from the discrimination. However, under EqA s.118 the time limit is extended to nine months if, within the six month period, the dispute is referred to to the Office of the Independent Adjudicator (see above) - or perhaps to the Equalities Mediation Service above (but check that with the Equalities and Human Rights Commission). Also the court has a general discretion to hear claims out of time if it considers it just and equitable (2010 draft Code from para 15.24).

There are rules on when the period for bringing a claim starts. See 2010 draft Code from para 15.19.

On a successful claim, the court can award compensation, including for financial loss or injury to feelings (2010 draft Code from para 15.42). Injunctions, or orders for postive action, are also possible.

Chapter 15 of the 2010 draft Code deals with complaints and conciliation.

Links

Working with students who stammer (pdf) - some examples of adjustments, on the De Montfort University website.
Skill: National Bureau for Students with Disabilities - Information sheets.

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