Educational institutions, including schools, must not discriminate against students. 

This obligation applies to every aspect of life at an educational institution, including in-class, on trips, during after school clubs and when using facilities.  If you have been treated unfavourably and have a protected characteristic, a discrimination claim may arise under the Equality Act 2010.

The education team at Birkett Long can guide you through the process of making a discrimination claim step by step, to ensure the best possible outcome for you.

The key concepts of the Equality Act 2010 are “protected characteristics” and “prohibited conduct”. The former are the grounds of discrimination and the latter are the types of discrimination.

What are the protected characteristics?

The eight protected characteristics are:

1. Age
2. Disability
3. Gender reassignment
4. Marriage and civil partnership 
5. Race
6. Religion or belief
7. Sex
8. Sexual orientation

Age and marriage or civil partnership are not protected characteristics for the purposes of discrimination in schools; and marriage and civil partnership is not a protected characteristic for the purposes of discrimination in further or higher education. 

What is “prohibited conduct”?

There are a number of different forms of conduct that are prohibited by the Equality Act 2010, including:

1. Direct discrimination – an example of this would be a school excluding a student because of their disability;
2. Indirect discrimination – an example of this would be where a school applies a policy (such as a uniform policy) that puts a disabled person and others like that person at a disadvantage compared to others; and
3. Discrimination arising from a disability – an example of this would be a school only allowing a student with special educational needs and a disability to attend school part-time because the school does not have the resources to provide full time support. 

The Equality Act 2010 also prevents educational institutions such as schools and universities from permitting or causing harassment and victimisation:

1. Harassment - an example of harassment would be a teacher making comments about a disabled student in their class that created a humiliating or offensive environment for that student; and
2. Victimisation – is where someone is treated badly or subjects someone to a detriment because that person has complained about discrimination, or they have helped someone who has been the victim of discrimination. An example of victimisation would be a school excluding a student because that student has complained about discrimination at that school.

Making reasonable adjustments

In addition to the above, the law requires education providers make “reasonable adjustments”. The duty to make reasonable adjustments differs from all other forms of discrimination under the Equality Act 2010, in that it imposes an obligation of positive discrimination, rather than prohibiting negative discrimination.

The reasonable adjustment duties are set out in section 20 of the Equality Act 2010 and are described as the first, second and third requirements:

1. First requirement – where a provision, criterion or practice of a person puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.
2. Second requirement – where a physical feature puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.
3. Third requirement – where a disabled person would, but for the provision of an auxiliary aid, be put at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to provide the auxiliary aid. 

The duties are different for schools than for further and higher education institutions. Schools are required to comply only with the first and third requirements above.

The fact that a pupil receives some support through an Education Health Care Plan (EHC plan) does not relieve a school of the duty to make reasonable adjustments in respect of matters that are not provided in the EHC plan.

Primarily, it is the county court that will determine claims of breaches of the relevant parts of the Equality Act 2010. Claims must be brought within 6 months of the date of the act to which the claim relates unless the court considers it just and equitable to allow a longer period. 

Disability discrimination claims are made in Special Educational Needs and Disability Tribunal (SEND Tribunal). Claims must be made within 6 months of the discriminatory act, or, if there is a case of continuing discrimination, within 6 months of the date of the last act of discrimination. 

If you are a young person or are a parent of a child who has been discriminated against and need a specialist discrimination in education solicitor, the Education Team at Birkett Long can help.

We appreciate that you want to hold the education provider to account and our experienced education solicitors can assist you in achieving that aim. If you would require advice or assistance, please contact Thomas Emmett, Head of Education, on 01245 453847 or email thomas.emmett@birkettlong.co.uk