Schools are obliged by the Equality Act 2010 not to discriminate against disabled pupils, or against those seeking admission. This page, along with a separate page on reasonable adjustments since they are so important, summarises Part 6 Chapter 1 of the Act dealing with schools. Issues will nearly always be resolved informally with the school. If need be though, cases can be taken to a tribunal (see Resolving disputes). This distinguishes Equality Act claims from SEN claims which, as regards stammering, usually cannot be legally enforced.
Summary
- Schools are subject to the Equality Act 2010, including the duty to make reasonable adjustments.
- As well as state maintained schools, the Act extends to academies, free schools, and independent schools.
- From 1st September 2012, the reasonable adjustment duty includes provision of auxiliary services (see separate page: Reasonable adjustments: Auxiliary aids and services).
- Alongside the Equality Act, the SEN framework is also very important.
- Nearly always, any issues will be resolved informally, though tribunal claims in respect of the Equality Act are possible (see Resolving disputes).
- There is various offical (non-statutory) guidance on how the Equality Act applies in schools: see below Links.
Schools etc covered
The Equality Act extends to both state schools (including academies and free schools) and independent schools. They apply even to pupils over 16 when in school, but see below on which rules apply to sixth forms and nursery provision.
Services to parents, eg at a parents evening, are likely to fall within different rules. See below Which rules – schools, further education or general services?
The legislation imposes its obligations on the “responsible body” of the school, as defined. For example, the governing body of a local authority maintained school in England will be either the local authority or governing body, depending how responsibilities are split (Schools Technical Guidance – England para 1.7-1.8, 2.8-2.10). For simplicity I generally talk about about the “school” rather than the “responsible body”. The responsible body is normally responsible for anything done by employees in the course of their employment, or by agents: see Who is liable.
Who is protected?
A child has rights under the Equality Act provided his or her stammer is a ‘disability’ as defined in the Equality Act.
…It may not be immediately obvious that a child is disabled. Underachievement and unexplained behaviour may, in some cases, indicate an underlying disability that has not yet been identified.
Para 6.60 of Schools Technical Guidance – England.
“…Sometimes though [stammering] can be harder to notice and identify as the child’s worries about his stammer may be more manifested in behaviour than speech, as talking is avoided and consequently not heard sufficiently to allow identification…”
From BSA’s former website archive of stammeringineducation.net: General teacher strategies (archive) – scroll down to ‘Learn how to identify stammering’.
In certain cases, there need not be any “disability” as defined: see Perceived disability. For an example see below Harassment.
Scope
Under s.85 EqA It is unlawful for a school to discriminate against a disabled child in relation to (broadly):
- admission to the school as a pupil;
- provision of education;
- access to a benefit, facility or service;
- exclusion from the school;
- subjecting the child to any other detriment.
Protection does not ‘end with the school bell’. Extracurricular activities can be covered:
Scottish pupil wins landmark disability discrimination tribunal (archive of EHRC website), 12 June 2013
A ten year old disabled pupil was held to be entitled to the support he needed to take part in an after school guitar club.
News report on the same case: Disabled schoolboy wins right to guitar lessons (heraldscotland.com).
3.3 A school’s obligation to pupils covers everything that a school provides for pupils and goes beyond just the formal education it provides. It covers all school activities such as extracurricular and leisure activities, afterschool and homework clubs, sports activities and school trips, as well as school facilities such as libraries and IT facilities.
Para 3.3 of Schools Technical Guidance – England.
However, services provided to parents, or to the public in general such as opening up a swimming pool on Saturdays, will be within a different part of the Equality Act: see below Which rules – schools, further education, or general services?
What counts as ‘discrimination’?
Discrimination
By and large, the normal types of discrimination are made unlawful – see Discrimination. An example of direct discrimination because of speech:
The admissions tutor for an independent school interviews an applicant who has cerebral palsy, which makes her speech unclear. The tutor assumes that the applicant also has learning difficulties and refuses to admit her, because he thinks she will be unable to cope with the highly academic environment of the school. This would be direct disability discrimination.
Para 2.28 Schools Technical Guidance – England
Particularly important is the right to reasonable adjustments. See the separate page Equality Act in schools: reasonable adjustments. From September 2012, auxiliary aids and services are included, as well as adjustments to any “provision, criterion, or practice”.
Harassment
On this generally, including the EqA definition of harassment, see Harassment of employees.
A teacher mimics a child who stammers. This is likely to be harassment.
Harassment is one example where a pupil may have a claim even if there is no ‘disability’ as defined by the Equality Act (Perceived disability):
A pupil who is extremely shy is teased by a teacher about not being confident enough to answer questions in class. The teacher mimics him in front of the class by speaking with a stammer. Although the teacher knows the pupil does not have a speech or language disability, this conduct could still amount to disability related harassment under the Act
Taken from para 8.14 of the 2011 consultation draft Codes of Practice on Schools, available on Equality Act consultations (archive of EHRC website). However, the relevant chapter (and thus the example) did not make it into the final version of the Schools Technical Guidance.
Often harassment will be by fellow pupils rather than by school staff. The major resource on bullying as regards stammering is BSA’s education websites: see Schools: BSA resources. However, specifically on the Equality Act, there is an argument that a school can be liable perhaps for indirect discrimination if it does not do enough to prevent bullying by others: see Harassment of employees>Third-party harassment: Indirect discrimination?
Accessibility strategies and plans
- A local education authority in England and Wales must prepare and implement an ‘accessibility strategy’.
- A school in England and Wales must prepare and implement an ‘accessibility plan.
- This is under EqA Sch 10.
For example, there should be a strategy or plan for “increasing the extent to which disabled pupils can participate in the school’s curriculum”. This ought to include accessibility for children with speech, language and communication needs (though whether schools and LEAs do this in practice is another matter!). Plans and strategies should be kept under review and revised if necessary.
There are separate planning duties in Scotland.
Exception: Content of curriculum
There is an exception for anything done in connection with the content of the curriculum (EqA s.89(2)). However, the Equality Act does cover the way in which the curriculum is delivered. See paragraphs 3.22 and 3.23 of the Schools Technical Guidance – England, 2014.
Exception: Admission to selective schools
A school is not liable for disability discrimination only because it applies a permitted form of selection for admission to the school (EqA Sch11 para 8). So a school can apply the same exam and pass marks to all candidates and, it seems, does not have to justify any standards which are more difficul for a disabled child to meet.
However, it seems the school can still be required to make reasonable adjustments as regards the assessment process.
See from para 2.29 of the Schools Technical Guidance – England, or any equivalent for Scotland or Wales.
If there is discrimination
See Resolving disputes in schools.
Which rules – schools, further education, or general services?
This page deals with the rules specifically on provision of education by schools, in Part 6 Chapter 1 of the Equality Act. There are separate rules on general provision of services to the public in Part 3 Equality Act, and on further and higher education in Part 6 Chapter 2 of the Equality Act.
Does it matter which rules apply? In some ways not, but for example:
- a Part 6 Chapter 1 claim in England (education in schools) will go to the First-tier Tribunal and financial compensation cannot be awarded, whereas
- a Part 3 claim in England (provision of services to the public) will go to the County Court which can award compensation.
Part 6 or Part 3?
Normally services to pupils will be covered by the education rules in Part 6 of the Equality Act discussed on this page (except in some sixth forms, below). So will treatment of children applying for admission to a school.
But services to parents are likely to fall within Part 3 Equality Act, eg a teacher dealing with a disabled parent at a parents evening. So are services to a pupil as a member of the public, eg if a school opens its swimming pool to the public on Saturdays and a pupil goes along. These examples are from para 1.34 of the Schools Technical Guidance – England.
Sixth forms
As I understand it, for its students a school sixth form will fall within the Part 6 EqA rules on schools, whereas a sixth form college in England and Wales or a 16 to 19 academy will fall within the further education rules (University and FE: the rules>Technical note: What institutions are covered?). So for example:
- a claim by a student against a school sixth form in England would go to a First-tier tribunal and financial compensation could not be claimed (Resolving disputes in schools), whereas
- a claim by a student against a sixth form college or 16 to 19 academy in England would go to a County Court and compensation could be claimed (Resolving issues at university or FE college).
Nursery provision
Which rules apply for nursery provision depends on who is providing it:
1.5 Nursery schools maintained by a local authority and nursery education provided by any school (either maintained or independent) have the same obligations as schools. Other early years education providers (such as private nurseries, childminders, accredited childminder networks, preschools,
playgroups and SureStart children’s centres) are covered by Part 3 of the Act as service providers.
Para 1.5 of the Schools Technical Guidance – England
Links
Links to guidance on the Equality Act in schools:
- Schools Technical Guidance from the Equality and Human Rights Commission.
For STAMMA’s (the British Stammering Association’s) resources on stammering in school, see Schools: BSA resources.
Codes of Practice
Due to government policy, there are no Equality Act Codes of Practice specifically on schools. Instead the Equality and Human Rights Commission has issued Schools Technical Guidance.
