This page covers disability discrimination in higher and further education under the Equality Act. A student who stammers has these rights provided the stammer is a “disability” as defined, which it very often will be. There are different rules for Northern Ireland.
- What equality law means for you as a student in further or higher education (link to EHRC), issued 2012.
- Technical guidance on further and higher education, issued in 2012, also referred to on this page as the ‘Technical guidance’. This guidance has been issued in place of a statutory Code of Practice.
- The ‘2007 Code of Practice’ on this page means the Code of Practice (revised) for providers of post-16 education and related services (link to dera.ioe.ac.uk), dated 2007. The 2007 Code may still be in force, but is out of date in that it does not include the Equality Act 2010. 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.
Universities and further education institutions are covered. This includes sixth form colleges. The detailed rules on what is covered are in EqA s.91 with s.94, explained in para 10.2 of the Technical guidance.
Other institutions covered
This page focusses on universities and further education institutions within s.91. However, broadly similar rules 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 Technical guidance)
- 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 11.16 of Technical guidance.)
- a maintained school providing further education to people other than pupils under s.80 School Standards and Framework Act 1998 (EqA s.92). For guidance, see Schools providing further education (link to EHRC guidance), and Chapter 12 of Technical guidance. Pupils will be covered by the rules on schools.
Examples of who may be covered:
- A local authority runs a 6 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
- 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: Technical guidance, para 11.17
- An education authority 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 school offers a further education course in plumbing: Schools providing further education (link to EHRC guidance).
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.
- Private colleges and training providers. They are likely to be subject to the general rules on provision of services, or the rules on Employment services as regards vocational training.
- Student unions. They are likely to be subject to the general rules on provision of services.
- Youth clubs run by voluntary organisations, likely to be subject to the general rules on provision of services.
(Technical guidance, para 3.57)
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 will normally fall within the Equality Act in some way.
What activities are covered?
- 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)), and
- in respect of qualifications (see below), including non-students (EqA s.91(3)) – see separate page Exams at university or FE college.
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 (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.
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.
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 of the 2007 Code of Practice. Note: the legal test for harassment as regards subjective perceptions is now a bit different (see Harassment of employees) but the result here should be the same.
Both universities/colleges and work placement providers fall within the Equality Act as regards work placements.
The non-exhaustive list of examples of university and college services covered by the EqA, in para 10.25 of the Technical guidance, includes arranging work placements, and placement-finding services.
The ’employer’ providing the work placement should also be covered by the Equality Act, either under the provisions applying to universities etc (for which claims go to the County Court) or under the employment provisions (for which claims go to the employment tribunal. However, this is a tricky area – see further my page Work placements.
In 2002 the DfES published a good practice guide for further and higher education institutions: Providing Work Placements for Disabled Students (external link).
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.
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.
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 Technical guidance (2012), and on my website at Direct discrimination in the context of employment
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 directdiscrimination 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.
Direct discrimination need not be conscious – people may hold prejudices that they do not admit, even to themselves.
Para 4.30 of the Technical guidance says a comparator need only have the same circumstances and abilities so far as these are relevant to the less favourable treatment. Para 4.13 of the 2007 Code of Practice (on the DDA) used a speech-related example to illustrate this:
“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 of the 2007 Code of Practice (on the DDA), but should still apply under Equality Act.
These types of claim are much wider than ‘direct discrimination’. For example, if a person is treated unfavourably because they take longer to speak, and that 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. There can be a discrimination claim even though the reason is taking longer to speak (a consequence of the stammer), rather than the stammer itself. There are are other examples in the boxes below.
Because these claims are much broader, the institution has a defence if it can show ‘objective justification’, ie it shows that what it did was a proportionate means of achieving a legitimate aim. Also, for ‘discrimination arising from disability’, there is a defence if the institution did not (and could not reasonably be expected to) know of the disability.
Indirect discrimination applies where a general provision, criterion or practice (PCP) puts people with a disability at a particular disadvantage, unless it can be justified. The English flunecy test example in a box below is potentially indirect discrimination (as a general PCP putting people with speech impairments at a disadvantage) as well as discrimination arising from disability.
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. This is given as an example of ‘discrimination arising from disability.
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 (on the DDA). Under the Equality Act this will be an example of disability arising from discrimination (unless justified, which is unlikely).
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), but similar to ‘discrimination arising from disability’ under the 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 the DDA), but similar to ‘discrimination arising from disability’ under the Equality Act.
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 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. This statement in the guidance is based on Court of Appeal cases – see Reasonable adjustments by service providers>Access to service should be as close as possible to that enjoyed by others.
The duty applies where a provision, criterion or practice puts disabled people at a substantial disadvantage. It also extends to physical features of premises, and to the provision of auxiliary aids and services. It includes 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, but are covered by the Equality Act in another way: see . There is also a reasonable adjustment duty relating to qualifications. See Exams at univerisity or FE college.
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 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 (Technical guidance, 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.
The reasonable adjustment duty is not anticipatory as regards qualifications for people who are not students at the institution (though the possible alternative claim of ‘indirect discrimination’ is anticipatory). See Exams at univerisity or FE college.
Is knowledge of disability required?
The Technical guidance, 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/0023/2002) (link to dera.ioe.ac.uk), and guidance at ecu.ac.uk.
However this area is difficult. See discussion at Services: Reasonable adjustments – Knowledge of disability.
There is a special rule to deal with “confidentiality requests”. This is where the disabled person or their parent has made a request for the nature or existence of the disability to be treated as confidential. In deciding whether an adjustment is reasonable the institution must have regard to the extent to which the adjustment is consistent with complying with the request (EqA Sch 13 para 8, Technical guidance from para 7.28).
A university student has a covert stammer – she swaps words and uses avoidance (eg often not speaking up in tuturials) so that most people do not realise she has a stammer. With encouragement from a speech therapist she has now talked about it with the university’s disability office, and she is telling some close friends. However, at the moment she does not want fellow students generally to know about it. This may place some limitations on adjustments the university can make. However, the university should so far as possible make reasonable adjustments consistent with the student’s request for confidentiality.
An institution is only liable for itself and its agents. So it 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. As regards work placements, see work placements above.
Also the Equality Act does not necessarily place its duties on the educational institution as such. Strictly, it is the institution’s “responsible body” (as defined) which is liable under the Equality Act. This will often be the governing body. Even so, 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 para 3.22 to 3.27 of Technical guidance).
Even if the responsible body has a defence, agents and employees may be personally liable (para 3.28-3.31 of Technical guidance).
There are also rules against people aiding, instructing, causing or inducing discrimination (para 3.32-3.46 of Technical guidance).
For the more on the provisions dealing with these issues, see my page Discrimination: who is liable under the Equality Act.
See separate page Exams at university and FE college.
- Working with students who stammer (pdf on archive of De Montfort University website – some examples of adjustments, by De Montfort University.
- Adjustments for disabled students (link to disabilityrights
- uk.org) – Disability Rights UK Factsheet F11