Understanding Disability Discrimination A

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

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

Definition of Disability A person (A) has a disability if: A has a physical or mental impairment (this includes a sensory impairment) and the impairment has a substantial and long term adverse effect on A’s ability to carry out normal day to day activities As with DDA 1995 what matters is the effect of impairment not its cause so there remains no need for a medical diagnosis.

Progressive conditions Severe disfigurement Cancer HIV Multiple Sclerosis Progressive conditions There is guidance and regulations in relation to the further definition of disability and progressive conditions. Cancer, HIV and MS, these are all specifically mentioned. Progressive conditions also meet the “substantial adverse effect” criteria if they are likely to result in such an effect in future but do not at the time. 31st October - code of practice – case law

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

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 Protected characteristic is the term used to describe any characterstic covered by the act sex, race, disability, sexual orientation, religion or belief Age marriage and civil partnership gender reassignment pregnancy and maternity Prohibited conduct refers to anything covered by the act that would constitute discrimination Case studies on less favourable treatment

Direct Discrimination Discriminating against someone because they have a disability. Less favourable treatment Discrimination by association The act states that “non disability” is not a protected characteristic. Association with a disabled child. For example a parent of a child with autism who is asked to leave a shop due to the childs behaviour, directly related to their autism.

Discrimination Arising from a Disability No need for negative consequences - “perceived different treatment” No comparator. Discrimination has occurred if: They are treated unfavourably because of something arising in consequence of their disability and If it cannot be shown that the treatment is a proportionate means of achieving a legitimate aim. No need for a comparator in order to prove less favourable treatment. What matters now is that it can be proved that the less favourable treatment occurred because of the child’s disability. This is the government’s response to the Malcolm judgement – difference between is it can be justified. No discrimination can take place in this situation if the person did not know or could not have reasonably expected to know about the disability. However a person must have done all they could reasonably be expected to do to find out the person has a disability, particularly if they have an on going relationship with the disabled person.

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. So a disabled boy who felt he was being treated less favourably due to his disability and gender, the comparator would be a non disabled girl.

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

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

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. Anticipatory still does not apply with regard to physical features as this is covered under school accessibility plans. Duty remains from Disability Discrimination Act 1995

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)

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 The act states that “non disability” is not a protected characteristic. Association with a disabled child. For example a parent of a child with autism who is asked to leave a shop due to the childs behaviour, directly related to their autism.

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. A child’s perception of these activities can be taken into account when deciding if an incident is harassment. This means the equality act now covers disablist bullying. A protected act - is anything done in relation to the Equality Act 2010. So for example if a child is treated differently at school by staff because they are bringing a claim of disability discrimination.

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.

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’

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

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

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

Any Questions?