Equality, Disability and the Law Overview (25 January 2013)

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Key Points
1. General Introduction
2. The Legal Definition of Disability
3. The Legal Definition of Discrimination
4. Discrimination in the Provision of Services
5. Discrimination in the Provision of Educational Services
6. Discrimination against Employees and Prospective Employees
7. Duty to Make Reasonable Adjustments
8. Exceptions to the Duty Not to Discriminate
9. Public Sector Equality Duty
10. Conclusion
11. Want to Know More?

Key Points

  • It is unlawful to discriminate against staff, students and other users and visitors to a college or university because of a disability.
  • It is a specific requirement under the Equality Act 2010 that information is accessible to those users with a disability.
  • Institutions must also comply with general and specific Public Sector Equality Duties.

1. Introduction

Since October 2010 institutions have been complying with The Equality Act 2010 with regard to disability discrimination and much of which is based on the previous Disability Discrimination Act 1995 (DDA).  This paper focuses on disability discrimination as it affects the provision of ICT and services in UK publicly-funded colleges and universities.  The law relating to accessibility of education services has undergone several changes since the scope of the DDA was extended to include education services by The Special Educational Needs and Disability Act 2001 (SENDA).  The Equality Act 2010 has now brought under one umbrella the various anti-discrimination laws including those relating to disability, age, sexual orientation, equal pay, race and religion. The Act applies to all organisations that provide a service to the public and also applies to certain clubs and associations and to those who sell goods or provide facilities.  This includes education services provided by a college or university, whether or not a charge is made for them.  The Equality and Human Rights Commission has published an Equality Act Starter Kit in downloadable modules at http://www.equalityhumanrights.com/, which provides an overview of the Act.

An institution, in addition to its duties under the Act regarding access to education services, also has similar duties with regard to its employees and to third parties to whom it provides non-educational services (for example, conference hosting or vacation accommodation letting).  

The Equality Act 2010 does not apply to Northern Ireland except to a very limited extent, and more detail is available at http://www.equalityni.org/site/default.asp?secid=home.  The Equality Challenge Unit also has an overview for the higher education sector of anti-discrimination law in Northern Ireland at http://www.ecu.ac.uk/publications/anti-discrimination-law-in-northern-ireland.

2. The Legal Definition of Disability

Under the Equality Act there are nine ‘characteristics’ which are protected from discrimination. Disability is one of these protected characteristics and is defined at s.6 of the Act as a physical or mental impairment that has a substantial and long term adverse affect on the ability to carry out normal day to day activities.  ‘Impairment’ covers long term medical conditions such as asthma and progressive or fluctuating conditions such as emphysema or arthritis.  Mental impairments may include mental health conditions (e.g. depression), learning difficulties (e.g. dyslexia) and learning disabilities (e.g. autism).  Certain medical conditions (cancer, HIV infection, and multiple sclerosis) are specifically included in the definition (schedule 1, part 1, s.6). Severe disfigurement is also protected as a disability without having to show substantial adverse effect.  However, the Equality Act 2010 (Disability) Regulations 2010 place restrictions on what is classed as a severe disfigurement or impairment.  For example, tattoos and piercing for decorative or other non medical purposes are not classed as severe disfigurements (s.5), and addictions (other than originally medically prescribed) are not considered impairments under the Act.  The full list is contained in s.3-s.7 of the Regulations.  The Act also protects someone who has or who has had a disability in the past and is discriminated against, e.g. harassed, because of this.

3. The Legal Definition of Discrimination

It is illegal under the Equality Act to discriminate against someone because of a protected characteristic. The definition of discrimination varies under the Act depending on which protected characteristic is being considered.  With regard to disability, the various types of discrimination which apply are:

  • Direct discrimination s.13(1) and s.13(3) – where someone is treated less favourably because of his disability, than others would be treated. However positive discrimination is permitted in respect of disability i.e. if a disabled person is treated more favourably than someone who is not disabled, this is not discrimination because of disability.  Direct discrimination is broad enough to cover instances where less favourable treatment is because of the person’s association with someone disabled or where someone is incorrectly thought to have a disability.

Example: A prospective student with a visual impairment is turned down for a place on a computer games design course. It is assumed that she would be unable to complete the course due to her disability. This would be direct discrimination.

  • Discrimination arising from disability (s.15); if someone is treated unfavourably because of something arising from his disability and this treatment is not proportionate to achieving a legitimate aim, this is unlawful discrimination. This does not apply if the institution did not know or could not have been expected to know that the person had a disability.

Example: A student has cerebral palsy and is refused entry into a computer lab as his speech is slurred and he is thought to be drunk. The tutor has not subjected him to discrimination arising from his disability if he did not know or could not have been expected to know that he was disabled. However, if a reasonable person would have known that his presentation was due to a disability this could amount to discrimination arising from his disability unless refusal to allow entry was a proportionate means to achieve a legitimate aim.

  • Indirect discrimination (s.19) – If a discriminatory practice is applied to someone who is disabled and it is also applied to others who are not disabled and it puts the disabled person at a disadvantage and it cannot be shown to be a proportionate means of achieving a legitimate purpose.

Example: A college has a blanket rule on access to learning support between 10am and 12pm.  A disabled student has a regular timetable for administration of medication one of which is during this period and is refused access to the service later in the day.  Unless this set time can be justified as a proportionate means of achieving a legitimate aim, it may amount to indirect discrimination.

Harassment and victimisation of someone because of   disability is also unlawful under the Equality Act 2010.

  • Harassment (s.26) is defined as unwanted conduct related to disability and the conduct violates dignity or creates an intimidating hostile degrading humiliating or offensive environment.  Protection from harassment is also provided for someone who is perceived to have or associates with someone who has a disability.

Example: A lecturer comments and makes fun of a disabled student by mimicking his behaviour in a way which makes the student feel uncomfortable.

  • Victimisation (s.27) is defined as where one person treats another detrimentally because they have asserted legal rights under the Equality Act or they have helped someone else to do so.

Example: In the above example a staff member then supports the student in his allegation of harassment and as a result other members of staff including his manager are now ignoring him.

4. Discrimination in the Provision of Services

Many colleges and universities provide services to people who are not connected with the institution – for example there may be a theatre group which offers events to the public, or an institution which lets its student accommodation to others in holiday periods or provides conference facilities including ICT facilities to external groups.  In terms of the Act there is a duty not to discriminate in the provision of these services.  The full terms of the Act in relation to provision of services are contained in s.29 and the duty to make reasonable adjustments applies.

5. Discrimination in the Provision of Educational Services

In addition to the general provisions against discrimination due to the protected characteristic of disability outlined above, particular provisions at s.91 of the Act apply to educational services provided to students, prospective students and in limited areas to other disabled persons by further and higher education institutions.  FE and HE institutions must not discriminate in decision arrangements for admissions, admission terms, in education provision, service access, and exclusion of a student.  Qualification decision making arrangements, by not conferring, varying or withdrawing a qualification or its terms are also covered here.

The Act at s.92 also makes it illegal to discriminate against a person in relation to course enrolment arrangements or acceptance, and at s.93 in provision of recreational or training facilities.

The duty to make reasonable adjustments as outlined below also applies here.

Example: A partially sighted student reported that she could not access some course materials due to her disability. The college department provided her with lecture notes in an alternative suitable format and subsequently circulated this knowledge to all departments. This was a reasonable adjustment and an anticipatory approach.

6. Discrimination against Employees and Prospective Employees

It is also illegal in terms of the Act for an institution to discriminate against a disabled person or an employee in arrangements, terms, offers and dismissals and with regard to promotion, training or transfer opportunities.  The full list is at s.39 of the Act and the duty to make reasonable adjustments applies.

7. Duty to Make Reasonable Adjustments

Alongside the requirement not to discriminate runs a duty to make reasonable adjustments  for disabled people(by virtue of s.20). This duty has three requirements: firstly, where an institution’s provision criterion or practice puts a disabled person at a substantial disadvantage compared to a non disabled person, reasonable steps must be taken to avoid the disadvantage.  Secondly, where a physical feature (for example access to a building) substantially disadvantages a disabled person reasonable steps must be taken to avoid the disadvantage.  Thirdly, where provision of an auxiliary aid (or service) would prevent substantial disadvantage, reasonable steps should be taken to provide the aid.  Where the first or third requirements of the duty relate to provision of information, there is an express requirement in the Act (s.20(6)) that reasonable steps must be taken to provide information in an accessible format.  Although the basic principle remains the same, the duty to make reasonable adjustments does vary slightly depending on whether it is general service provision, education service provision, and employment and the specific requirements should be referred to as required. For example there is an anticipatory duty with regard to reasonable adjustments for students but not in relation to employment.

The duty to make reasonable adjustments should be revisited at regular intervals, as it is an ongoing duty, and further reasonable adjustments should be made in the light of experience gained and new forms of assistance (for example, the availability of new software).  The overall aim is to remove where possible a disadvantage encountered by disabled people.  Failure to comply with the duty to make reasonable adjustments in relation to a disabled person is an act of unlawful discrimination in terms of the Act (s.21)

A reasonable adjustment is measured against available resources, cost of adjustment, practicality and potential benefit to other users. More detail on this is available in ‘Managing Reasonable Adjustments in Higher Education’ - http://www.ecu.ac.uk/publications/files/managing-reasonable-adjustments-in-higher-education.pdf/view

Most colleges and universities currently make reasonable adjustments such as individual computer and special assistive software availability for an otherwise paper exam or provision of course materials, in alternative formats and further examples are available in ‘Managing Reasonable Adjustments in Higher Education’ above.

8. Exceptions to the Duty Not to Discriminate

The exceptions under the Act to the duty of colleges and universities not to discriminate against disabled people are similarly divided into exceptions for particular provisions. Those of most relevance are:

Curriculum content: (s.94) states that the prohibition against discrimination does not apply to anything done in relation to the curriculum content itself.  This is to retain the institution’s ability to include a full range of issues and materials and allows exposure to all kinds of ideas and thoughts.  However the issues, ideas and materials that the student may be exposed to need to be taught in an accessible way so as not to subject the student to discrimination.

Knowledge of a person’s disability: it is not unlawful discrimination under provision of services where the institution, having fulfilled its duty to anticipate what reasonable adjustments should in general be made, still discriminates against an individual but did not know, or could not have been expected to know, that an individual person had a disability.  But if an appropriate reasonable adjustment to accommodate disabled people has not been made, it is more difficult to say that the unfavourable treatment is justified.  There is a corresponding duty on the education provider to be proactive in enabling disclosure from those with disabilities.

Confidentiality: if a request for confidentiality is made by the disabled student, this may mean that no reasonable adjustment can be made, or the reasonable adjustment which can be made is less beneficial as it is taking into account the respecting of confidentiality.

Competency standards: with regard to the level of attainment used to determine whether a student has reached a particular level of ability or competency, there is no duty to make reasonable adjustments to the standard, but there is to the process of showing that someone meets it.

Discrimination as a proportionate means of achieving a legitimate aim: with regard to indirect discrimination and discrimination arising from disability, examples of legitimate aims might include the maintaining of academic and other standards or ensuring the health and safety and welfare of students.  If the aim is legitimate, the way of achieving it must be proportionate i.e. appropriate and necessary.  It is likely that the more serious the discriminatory provision criterion or practice which results in these types of discrimination, the more robust and convincing must be the justification.

In addition it should be noted that in a discriminatory situation involving disability, if you have not complied with your duty to make relevant reasonable adjustments it will be difficult for you to show that the treatment was proportionate.

9. Public Sector Equality Duty

The Public Sector Equality Duty is effective from 5 April 2011. There is a general and a specific duty under the Equality Act.  It applies to public sector organisations including those in UK further and higher education.  It places both general and specific duties on colleges and universities with regard to the protected characteristics and replaces the Disability Equality Duty.  The general duty (s.149 of the Act) comprises three needs a public authority must address: the elimination of discrimination, harassment and victimisation; the promotion of equal opportunities; and the fostering of good relations between people who do and do not share a protected characteristic. In addition regulations covering the specific duty have been brought into force separately for Scotland, England, and Wales. The specific duties are intended to help public authorities comply with the general duties and contain requirements to publish on a regular basis, relevant proportionate information which shows compliance with the Equality Duty and also requires specific measurable equality objectives to be set and applied. The EHRC has various guidance documents on the public sector equality duty in England, Wales, and Scotland.

10. Conclusion

The Equality Act 2010 in relation to disability discrimination applies to the provision of educational services, as well as other services and also includes an institution’s relationship with its staff.  The law is framed in general terms and is not intended as a barrier to innovative use of technology.  Neither was it intended to mandate use of ICT as being appropriate in all circumstances.  Reasonable adjustments and workarounds will vary as required in order to prevent substantial disadvantage arising in particular circumstances.  The Public Sector Equality Duty reinforces the requirement that colleges and universities need to be anticipatory and proactive in allowing disabled persons to access and participate in tertiary education activities.

11. Want to Know More?

In addition to the legislation in this area, reference must be made to guidance, standards and codes of practice. Foremost of these are the following

 

 

 

Posted on 24/01/2013