Understanding Disability Discrimination A What We Will Cover

Understanding Disability Discrimination A

What We Will Cover Ø Equality Act 2010 Ø Responsibilities for colleges and employers 2

►Compulsory school age ►NEET ►Rules apply for post 16 ►Equality act came into force October 2010 ►Affects all areas of life ►Replaces Disability Discrimination Act 1995 and other relevant legislation 3

Definition of Disability A person (A) has a disability if: 1. A has a physical or mental impairment (this includes a sensory impairment) and 2. the impairment has a substantial and long term adverse effect on A’s ability to carry out normal day to day activities 4

► Severe disfigurement ► Cancer ► HIV ► Multiple Sclerosis ► Progressive conditions ► There is guidance and regulations in relation to the further definition of disability and progressive conditions. 5

Who is Covered ► Prospective pupils (in relation to admission arrangements) ► Pupils at the school/college (including those absent or temporarily excluded) ► Former pupils (if there is a continuing relationship based on them having been a pupil at the school) ►All employees or apprentices 6

Discrimination There are 4 ways in which a person with a protected characteristic can experience prohibited conduct in accordance with the act. ►Direct Discrimination ►Combined Discrimination ►Discrimination arising from a disability ►Indirect Discrimination 7

Direct Discrimination ► Discriminating against someone because they have a disability. ► Less favourable treatment ► Discrimination by association 8

Discrimination Arising from a Disability • No need for negative consequences - “perceived different treatment” • No comparator. Discrimination has occurred if: 1. They are treated unfavourably because of something arising in consequence of their disability and 2. If it cannot be shown that the treatment is a proportionate means of achieving a legitimate aim. 9

Combined Discrimination ► Discrimination arises due to a combination of protected characteristics ► Cannot be 2 disabilities – would need to bring 2 separate claims ► Comparator is a person who has neither of the protected characteristics. 10

Indirect Discrimination A discriminatory provision, criterion or practice. Four stage test: 1. It applies, or would apply to people who are not disabled 2. It puts, or would put, disable people at particular disadvantage when compared with non disabled people 11

3. It puts, or would put, the individual disabled person at that disadvantage; and 4. The person applying or operating the provision, criterion or practice cannot show it as a proportionate means of achieving a legitimate aim 12

Reasonable Adjustments Schools/ Colleges /Employers have a duty to make reasonable adjustments in 3 areas under the Equality Act 2010 ► Where a policy, criteria or practice puts a disabled person at a disadvantage. ► Where a physical feature puts a disabled person at a disadvantage. ► Where a disabled person would, but for the provision of an auxiliary aid be at a disadvantage in comparison with persons who are not disabled. 13

Education ► Duty on schools, FE and HE and qualifications bodies ► Schools must not discriminate in relation to admissions, exclusions or the provision of education in the school ► Anything the school does as a school is covered ► Must not harass, victimise or… fail to make reasonable adjustments (physical features are an exception) 14

Admissions and Exclusions ► The Equality Act protects children with disabilities from discrimination in admissions and exclusions. ► Admissions criteria ► Pupils must not be excluded because of their disability or behavior that occurs as a result of it ► Procedures and policies must be reviewed to ensure they don’t discriminate against children with disabilities 15

Harassment and Victimisation ► Harassment occurs when a person engages in unwanted conduct. ► This can be any kind of behaviour, spoken or written and includes graffiti, physical gestures, mimicry, jokes and pranks that affect person’s surroundings. 16

► It is discrimination if it has the purpose of violating the child’s dignity or “creating an intimidating, hostile, degrading humiliating or offensive environment” ► Victimisation occurs is a person is subjected to a detriment because they have or it is believed that they have engaged in a protected act. 17

Service Providers MUST NOT ► Discriminate against a disabled people who requires their service by not providing it ► Discriminate against disabled person by providing a service on worse terms, terminating the service or ‘subjecting (the child) to any other detriment’ 18

►Fail to make reasonable adjustments (additional duty to ‘adopt a reasonable alternative method of providing the service or exercising the function’) ►Harass or Victimise a disabled person 19

Accessibility Strategies and Plans ►LAs must prepare accessibility strategies, schools must prepare accessibility plans ►Increase the extent to which disabled pupils can ‘participate in the schools’ curriculum’ ►Improve the physical environment of the school for the purpose of increasing access for disabled children and… ►Improve the delivery of information for disabled pupils 20

Enforcement ► Generally in the County Court but school education cases in relation to disability to the Tribunal/IAP ► Court can award any remedy including damages N. B. NO damages in education cases ► Time limit generally 6 months (9 if EHRC conciliation used ► Once facts established burden shifts to alleged discriminator 21

Any Questions? 22