This page covers disability discrimination in universities and further education colleges under the Equality Act. There are separate pages on exams/assessments, examples of adjustments, work placements, and resolving issues.
- Technical guidance on further and higher education, 2014, by the Equality and Human Rights Commission. I often refer to this below as the “Technical guidance”. It was issued in place of a statutory Code of Practice because statutory Codes need government authorisation which the government is no longer willing give.
- The “2007 Code of Practice” on this page means the statutory Code of Practice (revised) for providers of post-16 education and related services (dera.ioe.ac.uk), dated 2007. This 2007 Code may still be in force legally, but is out of date in that it deals with the Disability Discrimination Act 1995 rather than the Equality Act 2010. Even if it remains in force, a statutory Code of Practice is not an authoritative statement of the law – it is for the courts to interpret the law. However if a Code is in force, the courts must take into account any part of the Code that appears relevant.
This page focuses mainly on the rules about universities and further education, under s.91 EqA.
S.91 is in Chapter 2 of Part 6 of the Equality Act. Chapter 2 does also include various other bodies and activities, though the detailed rules on them can differ. There is more detail on what is covered by s.91 and by the rest of Chapter 2 below: Technical note: What institutions are covered?
Universities etc are normally liable for acts and omissions of their staff, and sometimes of agents. See further below Who is liable?
What activities are covered?
Students and applicants
- against a student of the educational institution (EqA s.91(2)),
- as regards admission to the institution, including arrangements for this (EqA s.91(1)),
- in respect of qualifications (Oral exams and assessed presentations), it includes non-students as well as students (EqA s.91(3)).
A “student” is anyone “for whom education is provided by the institution” (EqA s.94(3)).
EqA protection for students is not limited to educational matters. It extends to any “benefit, facility or service” for a student (EqA s.91(2)). 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 10.25 of the Technical guidance.
S.91 EqA protects non-students as regards qualifications: Oral assessments at university: the rules>Non-students and qualifications.
Apart from that, services provided by universities other than to students or people applying to be students are likely to fall within Part 3 of the Equality Act, ie the general rules on provision of services. Examples include commercial conference facilities, or commercial research and consultancy. The Part 3 rules are much the same though as those for students under Part 6.
Services and facilities for staff are covered by Part 5, the employment provisions.
A former student is protected if the discrimination arises out of and is closely connected to the person having been a student, and the conduct would have been a breach of the EqA if it had occurred while the person was a student (s.108 EqA, and para 3.19ff of the Technical guidance with examples). This could include alumni activities.
I discuss s.108 EqA in the context of employment at Former employees/ workers.
In relation to work placements, both the university/college and the employer providing the work placement fall within the Equality Act, as regards acts and omissions of itself (including its staff or agents):
- As regards liability of the university or college, the non-exhaustive examples of university/college services covered by s.91 EqA, as listed in para 10.25 of the Technical guidance, include arranging work placements, and placement-finding services.
- The “employer” providing the work placement is also covered by the Equality Act. Sometimes though it is tricky deciding whether it is the education or the employment provisions of the Act which apply to the employer, and so which court to claim to.
There is more on my page Work placements related to education courses.
The normal types of discrimination claim (see Types of discrimination) apply to universities and FE. However below I put the different types of claim in the context of higher and further education, with examples.
Discrimination arising from disability under s.15 EqA is a wide type of claim. Basically it applies if a disabled person is treated unfavourably because of something arising in consequence of their disability, unless the university etc shows sufficient justification. For example if a person takes longer to speak because of their disability (stammer), unfavourable treatment of the person because they take longer to speak is likely to be unlawful as discrimination arising from disability, unless the university shows the unfavourable treatment was justified.
This type of claim can be particularly important in exams, where the unfavourable treatment could be making someone down due to effects of their stammer, but there are other examples in the boxes below.
Because a s.15 claim is so wide, the university etc has a defence if it shows that the unfavourable treatment was “objectively justified”, ie if it proves to the court (if the case gets to court) that what it did was a proportionate means of achieving a legitimate aim. This includes a balancing exercise by the court, considering whether the university’s aim was sufficiently important, whether the aim could have been achieved by alternative, less discriminatory means, and whether the aim outweighs the discriminatory effects on the individual claimant.
The university etc also has a defence under s.15 if it shows it did not have actual or constructive knowledge of the disability, ie that it did not know of the disability and could not reasonably be expected to know of it. However it is not a defence that the university did not know of the causal link between the disability (eg the stammer) and the reason why it treated the student unfavourably. So it doesn’t need to know the disability was relevant. See further Universities: Knowledge of disability>Discrimination arising from disability.
An example on assessments (see further Oral exams and assessed presentations, including adjustments):
Example: In an assessed presentation a university marks a student down for hesitations etc which resulted from her stammer (of which the university was aware). This is likely to be discrimination arising from disability in breach of s.15 EqA, unless the university can show justification.
See Example: Assessed presentation at university.
There is also an example below of a test for applicants.
Some examples while studying:
A disabled student is not allowed to enter a public speaking competition because his speech is slurred as a result of having cerebral palsy. In this case there is no need for a comparator. This amounts to discrimination arising from disability (which will be unlawful unless it is justified).
Para 6.6 of Technical guidance. It could apply equally to a student with a stammer.
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….
Para 6.8 of the 2007 Code of Practice. This example relates to the Disability Discrimination Act 1995. Under the Equality Act 2010 it will be discrimination arising from disability under s.15, unless justified, which is unlikely.
Some examples when applying to universities:
Example: Because of their stammer (and probably the lack of adjustments) a person applying for a place at university is unable sufficiently to get their points across in an interview with the university. The university therefore turns down their application. Provided the university knew or could reasonably be expected to know of their disability, this may well be discrimination arising from disability contrary to s.15. Being rejected is clearly “unfavourable treatment”, and especially if it failed to make reasonable adjustments the university may struggle to “justify” the rejection. The s.15 claim is in addition to any claim for failure to make reasonable adjustments.
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 of the 2007 Code of Practice (on the DDA 1995), but similar to “discrimination arising from disability” under s.15 Equality Act.
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. It is likely that 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 of the 2007 Code of Practice. On a different provision in DDA 1995, but similar to “discrimination arising from disability” under s.15 Equality Act.
Reasonable adjustments: Duty
Broadly, an institution is required to make adjustments to what it would normally do, so far as reasonable to avoid putting disabled people at a disadvantage.
More technically: if a provision, criterion or practice (PCP) applied by or on behalf of the university etc puts disabled students or applicants – ie those with a particular kind of disability – at a more than minor or trivial disadvantage in comparison with non-disabled people, the university etc is obliged to take such steps as it is reasonable to have to take to avoid the disadvantage (EqA s.20(3) with Sch 13 para 3). There is no need for all students who stammer to be disadvantaged by the PCP; the test may be roughly whether they are more likely to be disadvantaged than non-stammerers. Expert evidence may be helpful to show the group disadvantage, if it is disputed, as discussed at Indirect discrimination>Are people who stammer more likely to be disadvantaged?
Legally this reasonable adjustment duty on universities and FE colleges is essentially the same as that on service providers, discussed in more detail at Reasonable adjustments by service providers (though subject to some technical points below). In particular, like for service providers the duty is “anticipatory” – universities etc are required to consider different types of disabilities and make arrangements in advance: below Anticipatory nature (and ad hoc?).
As well as applying to PCPs which put disabled people at a disadvantage, the reasonable adjustment duty also extends to providing auxiliary aids and services (so far as reasonable) if but for their provision disabled people would be put at a disadvantage, and to physical features of premises (EqA s.20 with Sch 13). The duty includes admission arrangements, and also education or other benefits, facilities and services for students (EqA Sch 13 para 3(4)). The disadvantage must be “substantial” but that is defined as meaning only “more than minor or trivial” (EqA s.212(1)).
Applying particular competence standards in assessments etc is excluded from the reasonable adjustment duty (Oral assessments at university: the rules>Reasonable adjustments: exception for competence standards). However the Equality Act covers competence standards in other ways, such as s.15 above. Also the reasonable adjustment duty does apply to how competence standards are assessed. See Oral assessments at university: the rules.
The reasonable adjustment duty is not minimalist. In deciding what steps should “reasonably” be taken the aim is to approximate the access enjoyed by students generally:
The duty to make reasonable adjustments is not a minimalist requirement of simply ensuring that some access is available to disabled students; it is, so far as is reasonably practicable, to approximate the access enjoyed by disabled students to that enjoyed by the rest of the student body. The purpose of the duty to make reasonable adjustments is to provide access to an education as close as is reasonably possible to the standard normally offered to students at large.
Para 7.3 of Technical guidance (see also para 7.57), based on Court of Appeal decisions: see Reasonable adjustments by service providers>Access to service should be as close as possible to that enjoyed by others.
There are some examples of adjustments for students who stammer produced by De Montfort University – Working with students who stammer (pdf on archive of De Montfort University website).
The reasonable adjustments duty for students (and applicants) is anticipatory, owed to disabled persons generally. This means it does not only arise when a disabled individual presents themself. The education provider should anticipate the requirements of applicants and students with different types of disabilities, and the adjustments that may have to be made for them (Technical guidance (quoted below), from para 7.19).
There is a right to claim for discrimination only when the failure to take steps leads to (broadly) detriment for a particular student or applicant: below Reasonable adjustments: Detriment. However, the fact that universities etc should be reasonably anticipating people’s needs means that the court does not look only at what could reasonably be done on an ad hoc basis for the particular disabled person. The Technical guidance (below) – based on case law – says education providers should consider different kinds of disability in advance, doubtless including stammering.
There is a case study of a failure to provide adequate support in an assessed group presentation through the university taking a “reactive” rather than an anticipatory approach, on p.14 of “Supporting students who stammer in higher education” by STAMMA/STUC. It also led to the student’s relationships with the rest of her group breaking down, as they had to present without her and felt she had not fulfilled her part.
Note: Perhaps this might have been a breach of the reasonable adjustment duty even if the duty were not anticipatory. Indeed the (non-anticipatory) duty on employers is “proactive” in that the employer may be obliged to make an adjustment not suggested by the worker if the employer has sufficient knowledge: Reasonable adjustment rules: employment>Onus to comply is on employer. However doubtless the problem would be less likely to have arisen if the university had anticipated adjustments.
For more on the anticipatory nature of the duty, see Reasonable adjustments by service providers>”Anticipatory” duty.
Ad hoc adjustments and individual circumstances?
What if someone’s need for a particular adjustment is not something the university etc should reasonably have anticipated, so it had no obligation to make arrangements in advance? There are technical uncertainties as to how far an education provider (or service provider or public body) is also obliged to make ad hoc adjustments based on a person’s individual circumstances. I consider this in some detail at Ad hoc adjustment duty on service providers.
However according to the EHRC’s Technical guidance (below) at para 7.25, once an education provider has become aware of the requirements of a particular disabled student it might then be reasonable for the education provider to take a particular step to meet these requirements – especially where the student has pointed out the difficulty that they face or has suggested a reasonable solution to that difficulty. That paragraph gives the example of a university – which has made arrangments in advance with British Sign Language (BSL) interpreters – needing to consider whether to arrange an American Sign Language (ASL) interpreter when it finds a particular student needs one, even though it may not have been reasonable to have arrangements with an ASL interpreter beforehand.
Also at para 7.56 the Technical guidance makes the point that different people with the same disability may have different needs. It gives the example of one Deaf student using a portable induction loop, whereas another prefers to lip-read. The reasonable adjustments for each student would be different. Similarly at para 7.62 the guidance says education providers need to think carefully about what adjustments can be made to avoid the disadvantage experienced by the individual disabled student – even students with the same disability might need different adjustments to overcome the disadvantage. Para 7.67 makes a similar point, giving an example.
Continuing and evolving duty
Para 7.26 of the Technical guidance says the duty is a continuing one (and this was common ground in a Court of Appeal case on public bodies, see link below). Education providers should keep the duty and the ways they are meeting it under regular review in light of their experience with disabled people wishing to access their services. In this respect it is an evolving duty. What was originally a reasonable step to take might no longer be sufficient. See too Reasonable adjustments by service providers>Ongoing and evolving duty.
Duty is not anticipatory for non-students
The reasonable adjustment duty on universities etc is not anticipatory as regards qualifications for people who are not students at the institution. See Oral assessments at university: the rules>Reasonable adjustments: non-students.
Technical guidance on “anticipatory” nature of duty
The EHRC’s Technical guidance on further and higher education reads as follows:
To whom is the duty to make reasonable adjustments owed?
7.17 The duty to make reasonable adjustments is an anticipatory one owed to disabled people and disabled students generally. It is not solely a duty that is measured in relation to each individual disabled person who wants to access further or higher education.
An anticipatory duty: the point at which the duty to make reasonable
7.19 In relation to further and higher education the duty is anticipatory in the sense that it requires consideration of, and action in relation to, barriers that impede all disabled people prior to an individual disabled student seeking to access education or the benefits, facilities and services offered to students by the education provider.
7.20 Education providers should therefore not wait until a disabled person approaches them before they give consideration to their duty to make reasonable adjustments. They should anticipate the requirements of disabled students and the adjustments that may have to be made for them. Failure to anticipate the need for an adjustment may create additional expense, or may render it too late to comply with the duty to make the adjustment. Furthermore, it may not in itself provide a defence to a claim of a failure to make a reasonable adjustment.
Does the duty to make reasonable adjustments apply even if the education provider does not know that the person is disabled?
7.21 Because there is a duty to disabled students generally, it applies regardless of whether the education provider knows that a particular person is disabled or whether it currently has disabled students.
7.22 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. The action that it is appropriate to take to find out about a student’s disability may differ between different types of provision.
(Guidance is available on the reasonable action an education provider should take to find out about people’s disabilities. ‘Finding Out About People’s Disabilities: A Good Practice Guide for Further and Higher Education Institutions’ (DfES/0023/2002) [link added to dera.ioe.ac.uk] England only or guidance from the Equality Challenge Unit … .
Must education providers anticipate every barrier?
7.23 Education providers are not expected to anticipate the needs of every prospective student, but they are required to think about and take reasonable steps to overcome barriers that may impede people with different kinds of disability. For example, people with learning difficulties, mental health conditions or mobility impairments may face different types of barriers.
7.24 Disabled people are a diverse group with different requirements – for example, visually impaired people who use guide dogs will be prevented from using education facilities with a ‘no dogs’ policy, whereas visually impaired people who use white canes will not be affected by this policy. The duty will still be owed to members of both groups.
7.25 Once an education provider has become aware of the requirements of
a particular disabled student it might then be reasonable for the education provider to take a particular step to meet these requirements. This is especially so where a disabled student has pointed out the difficulty that they face or has suggested a reasonable solution to that difficulty.
Example: A university anticipates that some Deaf students will require the use of British Sign Language (BSL) interpreters and ensures it has access to BSL interpreters at short notice. However, a student who arrives at the university uses American Sign Language (ASL) and had not previously notified the university of this. As soon as the university is aware of this it should consider making the necessary reasonable adjustment by seeking an ASL interpreter, even though it may not have been reasonable to have arrangements with an ASL interpreter before the student arrives.
Reasonable adjustments: What is reasonable?
On deciding what adjustments are “reasonable”, the Technical guidance at para 7.61 gives a non-exhaustive list of relevant factors.
Normally the burden of proof will be on the university etc to show the proposed adjustment is not reasonable.
Reasonable adjustments: Cost
Cost is only one factor in deciding whether it is reasonable to make a particular adjustment (see also cost as regards an employer’s reasonable adjustment duty). The fact that there is a significant cost – if there is one – does not mean it is unreasonable, as discussed in the Technical guidance below.
Under s.20(7) EqA the student cannot be required to pay the costs of the university etc complying with the reasonable adjustment duty. See discussion on cost of medical evidence required by a university.
The Technical guidance at paragraphs 7.68-7.75 discusses cost, including the relevance of grants, in deciding whether an adjustment is reasonable:
- The Technical guidance says that if an adjustment costs little or nothing to implement (as should often be the case with stammering), it would be reasonable to do so unless some other factor (such as practicability or effectiveness) makes it unreasonable (para 7.68).
- The costs to be taken into account include those for staff and other resources. The availability of external funding should be taken into account (para 7.68).
- If Disabled Students’ Allowance (DSAs) etc are available, it may not be reasonable to expect an education provider to pay for the same aids and services (para 7.70, 7.74). However in some cases students may need reasonable adjustments in addition to those resourced by DSAs etc (para 7.72).
(Note: DSAs apply in higher education. On funding in further education, see para 7.71 of the Technical guidance and Funding further education for disabled students (disabilityrightsuk.org).)
- Para 7.68 of the Technical guidance suggests that the significance of the cost of a step may depend in part on what the education provider might otherwise spend in the circumstances.
- It is more likely to be reasonable for an education provider with substantial financial resources to make an adjustment with a significant cost (para 7.75).
- The Technical guidance also says the setting may be relevant to what level and cost of adjustment is reasonable:
7.64 What is appropriate in one setting might not be appropriate in another setting. Clearly more extensive adjustments may be considered reasonable when they facilitate access to core services. It is more likely to be reasonable for an education provider to have to make an individualised adjustment with significant costs for a student who is likely to be at the institution for some time than for a temporary student.
Technical guidance, para 7.64
Reasonable adjustments: Is knowledge of disability required?
The Equality Act contains no express defence to the reasonable adjustment duty for a university which did not know of the disability, unlike s.15 above (apart from a limited special rule if the student has made a confidentiality request). However the courts may well accept that a university unaware of a disability is not liable if it has taken whatever steps were reasonable to find out about disabilities of students and applicants, unless the adjustment is one it should have applied universally.
Whatever the legal position, if you want a reasonable adjustment, in practice it obviously makes sense to ensure the university knows about the stammer, what the problems are (how you may be put at a disadvantage), and if possible what adjustments you would like.
Reasonable adjustments: Detriment
To claim for reasonable adjustments, the student probably has to show that they as an individual suffered a detriment, or at least there was a real prospect they would suffer a disadvantage. The technical test is unclear. Often though it should not matter in practice. See Detriment to claimant in anticipatory reasonable adjustment claims, including the section on Education providers.
Reasonable adjustments: Technical points
As regards students and people applying to be students, the reasonable adjustment duty on universities and FE providers is essentially the same as the duty on service providers, which I deal with in more technical detail at Reasonable adjustments by service providers. This includes the two-stage legal test which is often applied by the courts. I’m not aware of the courts having applied that two-stage test to education providers, though I see no reason why it should not apply.
I say the duty is essentially the same because – like for service providers – under EqA Sch 13 para 3(3)(c)(i)(ii) the duty towards students refers to disabled persons generally rather than an individual disabled person, making the duty anticipatory (above). However the duty towards non-students taking qualifications is different, since the statutory wording there just refers to the individual disabled person: EqA Sch 13 para 3(3)(c)(iii).
There are a few specific ways in which the reasonable adjustment towards students and people applying to be students does differ from the duty on service providers generally:
- the exception for competence standards (Oral assessments at university: the rules>Reasonable adjustments: exception for competence standards)
- different statutory wording at stage 2 of the two-stage test (ie to decide whether the particular individual has a claim), though this will not necessarily make a real difference: see Detriment to claimant in anticipatory reasonable adjustment claims>Education providers
- the specific provision on confidentiality requests in the case of education providers.
Indirect discrimination (s.19) applies where a general provision, criterion or practice (PCP) puts disabled people at a particular disadvantage, unless the university etc can show the PCP is justified.
Often other types of EqA claim are more useful. However a particular instance where indirect discrimination can be helpful is discriminatory competence standards in exams/assessments, because competence standards are exempted from the reasonable adjustment duty: see Oral assessments at university: the rules. (Indirect discrimination is particularly important for contesting competence standards imposed by professional qualification bodies, since there s.15 EqA is not available as an alternative.)
On a claim for direct discrimination under s.13 EqA, the institution has no “objective justification” defence. The university etc cannot claim that its action was a proportionate means of achieving a legitimate aim. However the price for this is that the scope for making a claim is much narrower than discrimination arising from disability (above).
The test for direct discrimination is whether the claimant 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. I discuss this in the context of employment at Direct discrimination. As regards universities and FE, Chapter 4 of the Technical guidance, 2014, discusses it.
To decide if disability was a reason for the less favourable treatment, the court normally has to consider the discriminator’s mental processes, though the person’s motives and intention do not matter: see Direct discrimination>”Because of” disability.
“Example: A theatre studies course that organises theatre trips for its students turns down an application for a trip from a woman with a hearing impairment as they believe she would not get the same benefits as other students. This is likely to be direct disability discrimination.”
Para 4.14 of the Technical guidance. The reason for turning down the application was her disability, even though the course organisers thought they were acting from “good intentions”.
An example of direct discrimination can be where the institution makes generalised or stereotypical assumptions about a disability or its effects:
“The examples below illustrate decisions that are likely to be unlawful direct discrimination because they are based on stereotypes:
… Example: A prospectus describes a short, intensive degree programme and emphasises that it requires stamina to complete the course and therefore it is unsuitable for anyone with a long-term or fluctuating health condition. This statement is based on the assumption that no one with a long-term or fluctuating health condition, including mental health conditions, would be able to complete the course.”
Para 4.1 of the Technical guidance.
That applies whether or not the stereotype is accurate in the particular situation: para 4.15 of the Technical guidance, and the Roma Rights case discussed on Stereotypes and assumptions>What if stereotype has some truth in it?.
Direct discrimination need not be conscious. People may hold prejudices that they do not admit, even to themselves.
Direct discrimination: Comparator
Paragraphs 4.22 and 4.30 of the Technical guidance, 2014, say a comparator need only have the same circumstances and abilities so far as these are relevant to the less favourable treatment:
“Example: A group of Deaf students travelling together on an educational trip, organised by their university department, are having animated conversations using British Sign Language. The coach driver warns them that unless they ‘calm down’, they will be asked to leave the coach as their behaviour is disturbing other passengers. The group notice that a similar warning has not been given to a far livelier group of non-Deaf teenagers moving about at the front of the coach. The two groups are likely to be in a comparable situation.”
Para 4.22 of the Technical guidance
Example: A disabled student with a chronic heart condition is told that he will not be selected for the college golf team because his game is not good enough but he suspects it is because of his disability. The correct comparator in a claim for direct discrimination would be a student who does not have a chronic heart condition who has the same golf handicap.
Para 4.30 of the Technical guidance
For similar guidance on employment and technical discussion of “relevant” circumstances, see Direct discrimination>Technical note: “relevant” circumstances in the comparison.
Whether the university is liable for harassment by fellow students is not so simple. Failure to take action against harassment by students may perhaps be indirect discrimination, for example. This is discussed in the context of employment at Harassment of employee>Harassment by third parties, such as customers or suppliers.
A work placement provider is normally liable for harassment by its staff: Work placements related to education courses.
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 of the 2007 Code of Practice, on the DDA 1995. The result is likely to be the same under the Equality Act 2010, even though its legal test as regards subjective perceptions is a bit different (Harassment of employees>Subjective perceptions).
A trainee primary school teacher with a severe facial disfigurement is told by her course tutor that she should not expect to work with very young children ‘looking like that’ because she might ‘upset’ the children. The tutor questions the student’s choice of career and makes remarks about new treatments and make-up to cover the ‘problem’, in front of others. The student is very offended and hurt by this behaviour. This is likely to be direct discrimination and harassment related to disability.
Technical guidance 2014, para 8.10.
Someone may be able to claim for harassment even if it is another person who is disabled, for example a student may be able to claim in respect of their parent’s disability (see Discrimination by association):
At a careers event for students and parents at an FE college, a student attends with her parents who are both Deaf. They communicate using BSL and the student notices two support staff staring and silently mimicking them. The student is very upset by the conduct of these staff which prevents her from fully participating in the event as it creates a degrading and offensive environment for her as well as her parents. The student could bring a claim of harassment related to disability.
Technical guidance 2014, para 8.12.
Chapter 8 of the Technical guidance, 2014, deals with harassment.
In everyday language, “victimisation” often means much the same as “harassment”. However it has a particular meaning in the Equality Act. “Victimisation” under s.27 EqA is basically where an education provider (or employer etc) subjects a person to a detriment because they made or were involved in a discrimination claim. The Equality Act makes it unlawful to do this. See Victimisation.
A student asks the university for a reasonable adjustment and as a result is subjected to some kind of detriment. This is likely to be unlawful as “victimisation”.
As discussed in more detail on my page Who is liable under the Equality Act:
- A university etc is normally liable for acts and omissions of its staff, and sometimes of agents. Usually it is responsible for anything done by employees in the course of their employment, or by agents acting within their authority. If by an employee, the university etc has a defence if it took such steps as were reasonably practicable to prevent the actions. (Para 3.22 to 3.27 of Technical guidance)
- A staff member or agent who discriminates can also be personally liable. They may be personally liable even if the university etc has a defence (para 3.28-3.31 of Technical guidance).
- There are further rules against people aiding, instructing, causing or inducing discrimination by another person (para 3.32-3.46 of Technical guidance).
An institution is only liable for acts and omissions of itself and its staff or agents (though its acts can include causing or inducing etc as outlined above):
- So a university etc is not as such liable for a separate examining body, though it may still have duties in relation to the exam – see Exams at university and FE college>External examining bodies.
- A case illustrating the principle is County Durham and Darlington NHS Foundation Trust & Health Education England v Jackson, 2018: see Work placements related to education courses>Liability of each body should be considered separately. Also that page deals generally with discriminaton in relation to work placements.
Strictly speaking the Equality Act does not place liabilities on the educational institution as such. It is the institution’s “responsible body” (as defined) which is liable under the Equality Act (s.91(12), and para 10.3 of Technical guidance). This is often the governing body. Even so, for simplicity I generally talk about the “university” or “institution” etc being liable rather than the responsible body.
These Equality Act rules apply to England, Wales and Scotland (Great Britain). For the Northern Ireland rules see Education: disability discrimination in Northern Ireland.
The Equality Act does not normally specify what link there must be with Great Britain, so the court must decide whether the link is close enough: Connection with Great Britain: services.
However there are special rules for “information society services”, including many online services. Basically these say that in respect of information society services, a claim can be brought in Great Britain under the Equality Act if the education provider is “established” here, but cannot be brought in Great Britain against a provider established in the European Economic Area (EEA). These rules seem to continue notwithstanding Brexit.
Example: A Norwegian student – while in Norway – has online seminars with an English university. She is considering a reasonable adjustment claim under the Equality Act due to difficulty participating in these seminars, because of a stammer or some other disability.
The online seminars may fall within the definition of “information society services”. If so, given that the student is in an EEA country, the claim should fall within the territorial scope of the Equality Act because the university is established in Great Britain.
Even if the online seminars are not information society services, I suggest the Equality Act is likely to apply. It is a British university, and also any reasonable adjustments sought would presumably involve the university taking action in Great Britain rather than abroad.
Note: Norway is in the EEA even though it is not a member of the EU. See Countries in the EU and EEA (gov.uk).
Content of curriculum (exception)
EqA s.94(2) creates an exception for “anything done in connection with the content of the curriculum”.
The idea is that education bodies are free to expose students to a full range of materials, ideas and arguments, whether or not they might be regarded as offensive by some people.
However there is a question of whether the exception goes further, whether it limits rights to claim in relation to eg assessments if they are more difficult because of one’s the disability. I would argue not. See further Oral assessments at university: the rules>Curriculum defence, which also discusses the exception more generally.
See separate page Exams at university and FE college.
Public Sector Equality Duty (PSED)
Institutions within the higher education sector and further education sector are also covered by the Public Sector Equality Duty (PSED). This requires public bodies to have due regard to disability when making decisions. See the EHRC Technical guidance on the PSED for England, Scotland and Wales linked from there, and EqA Sch 19.
However the other provisions discussed on this page will normally be much more useful than the PSED.
- Supporting students who stammer in higher education – guide produced by Stamma and STUC, June 2021
- Working with students who stammer (pdf on archive of De Montfort University website, 2007 – some examples of adjustments, by De Montfort University.
- Adjustments for disabled students (disabilityrightsuk.org) – Disability Rights UK
This page focuses mainly on the rules applying to universities and further education under s.91 EqA, which is in Chapter 2 of Part 6 of the Equality Act.
Chapter 2 of Part 6 goes further than s.91 though. It includes various other bodies and activities as discussed below, although the detailed rules on them may differ. If a body is not covered by Chapter 2 of Part 6, it is likely to be covered elsewhere (below) in the Equality Act.
Universities, further education institutions and 16 to 19 Academies are covered by s.91 EqA. Sixth form colleges in England and Wales are included in s.91 EqA as being within the further education sector under s.91(3)(c) Further and Higher Education Act 1992. The detailed rules on what institutions are covered and what is the “responsible body” (above) for them are in EqA s.91(10)-(12) with s.94, and explained in paragraphs 10.2-10.3 of the Technical guidance. For example in England and Wales as well as a university, s.91 EqA includes any institution within the “higher education sector” as defined in s.91(5) Further and Higher Education Act 1992 (EqA s.91(10), s.94(5)).
Universities etc are normally liable for acts and omissions of their staff, and sometimes of agents. Also a staff member or agent who discriminates can be personally liable. See above Who is liable?
Other institutions covered by EqA Part 6 Chapter 2
This page focuses on universities, further education institutions, and (to a lesser extent) 16-19 Academies within s.91 EqA. However, largely similar rules in ss.92 and 93 apply to the following:
- A local authority in England or Wales securing a course of higher or 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 the Technical guidance)
- A local authority in England and Wales securing recreational or training facilities under certain statutory provisions. In Scotland it is these facilities provided by education authorities. (EqA s.93, and from para 11.16 of the Technical guidance.)
- A maintained school in England and Wales providing further education to people other than pupils under s.80 School Standards and Framework Act 1998 (EqA s.92(7)(b)), namely part-time education suitable for those over compulsory school age or full-time education suitable for those aged 19 and over, other than to pupils. For guidance, see Chapter 12 of Technical guidance. Pupils are covered by the rules on schools (EqA Part 6 Chapter 1).
Examples of who may be covered, from the Technical guidance:
- A local authority runs a six-week computer course at a local library: Technical guidance, para 11.12
- A local authority runs a six-week course for 16-18 year old school leavers to assist them in finding paid work: Technical guidance, para 11.13
- An education authority in Scotland (for example, a local council) sets up and runs a catering programme: Technical guidance, para 11.14
- A local authority puts on a summer camp for children from local schools: Technical guidance, para 11.17
- A local authority offers a youth club for young people aged 11 to 17: Technical guidance, para 11.17
- An education authority in Scotland establishes, maintains and manages a swimming pool for pupils in attendance at local schools and others in the community: Technical guidance, para 11.19
- A maintained school in England or Wales offers literacy and language classes for parents: Technical guidance, para 12.14
- A school (in England or Wales?) offers a further education course in plumbing: Schools providing further education (archive of EHRC guidance).
I have mostly not distinguished above whether the example relates to England, Scotland or Wales. The detailed rules on what is covered vary between them. However if not within these Part 6 rules, it should be covered by Part 3 of the Equality Act on provision of services (below Excluded (but likely to be covered elsewhere in the Equality Act).
Excluded (but likely to be covered elsewhere in the Equality Act)
Not normally covered by those rules on further and higher education (in EqA Part 6 Chapter 2) are:
- Schools in respect of provision to their pupils, even pupils over 16. These, including school sixth forms, are covered by the specific rules for schools in Chapter 1 of Part 6.
- Private colleges and training providers. They are likely to be subject to the general rules on provision of services in EqA Part 3 (Technical guidance, para 1.7), or for vocational training the rules in EqA Part 5 on Employment services.
- Student unions. They are likely to be subject to the general rules on provision of services in EqA Part 3.
- Youth clubs run by voluntary organisations, likely to be subject to the general rules on provision of services in EqA Part 3 (Technical guidance, para 3.57).
- Local authories will often be covered by EqA Part 3, as service providers or bodies exercising public functions, rather than under Part 6 as education providers. Para 11.3 of the Technical guidance says for example a local authority providing school transport, or providing an education, health and care needs assessment, would fall within Part 3.
Local authority activities which are not covered by s.92 or s.93 are likely to fall within the Equality Act either as a provision of services to the public or as a public function, in both cases under EqA Part 3. Similarly, services or functions by any other body or company will normally fall within the Equality Act in some way.