Shaun Roberson
Disability and Equality
One of the purposes of Disability Awareness Week is to introduce the Disability Scheme following the Equality Act 2010.
What is the Equality Act 2010?
This act is a new piece of legislation that effectively brings together over 116 different pieces of legislation into one single act with an attempt to simplify, strengthen and harmonise the current legislation. This will provide Britain with a new discrimination law, which protects individuals from unfair treatment and will promote a fair and more equal society. One of the previous acts included in the harmonisation is the Disability Discrimination Act 1995. This act was the previous legislative instrument on Disability Discrimination Law.
What are the changes for people with disabilities?
The Equality Act covers nine protected characteristics, which include age, disability (of course), Gender Reassignment, Marriage and Civil Partnership, Pregnancy and Maternity, race, religion and Belief, sex, and sexual exploitation. The Equality Act will strengthen disabled people’s protection from discrimination. It also protects people from dual discrimination, discrimination by association and perception.
History leading up to the Equality Act 2010
There was no overt anti-discrimination legislation in English Law until the First Relations Act in 1968. Other acts that have led to the development of the Disability section within the Equality Act 2010: Education Act 1996; Special Educational Need Code of Practice 2001 (SENDA) Disability did not become a protected ground until 1995. There were several specific sectors in which such forms of discrimination were unlawful, including employment and training, and education. The Labour Party included a commitment to an Equality Bill in its 2005 election manifesto. The Discrimination Law Review was established in 2005 to develop the legislation and was led by the Government Equalities Office. The review considered the findings of the Equalities Review Panel, chaired by Trevor Phillips, which reported in February 2007. The Parliamentary process was completed following a debate, shortly after 11pm on 6 April 2010, when amendments by the House of Lords were accepted in full.
Types of Discrimination
Direct Discrimination: Direct discrimination occurs when you treat a pupil/student less favourably than you treat (or would treat) another pupil/student because of a protected characteristic. For example, refusing to admit a pupil/student because of their race, for example, because they are Roma.
Indirect discrimination:
Indirect discrimination occurs when you apply a provision, criterion or practice in the same way for all students or a particular group, such as postgraduate students, but this puts students sharing a protected characteristic within the general student group at a specific disadvantage. Example: A school requires male pupils to wear a cap as part of the school uniform. Although this requirement is applied equally to all pupils, it excludes Sikh boys whose religion requires them to wear a turban. This would be indirect discrimination based on faith and belief as the school is unlikely to justify this action.
Discrimination by association:
Discrimination by association occurs when you treat a student less favourably because of their association with another person who has a protected characteristic (other their pregnancy and maternity). This might occur when you treat a student/pupil less favourably because of their sibling,
Discrimination by perception:
Occurs when you treat a pupil/ student less favourably because you mistakenly think that they have a protected characteristic.
Harassment:
It occurs when you engage in unwanted behaviour related to a relevant protected characteristic and which has the purpose or effect of violating a pupil’s dignity or creating an intimidating, hostile, degrading, humiliating, or offensive environment for the pupil. It doesn’t apply to gender reassignment, sexual orientation, religion, or belief in school.
Victimisation:
Treating someone badly because they have done a ‘protected act’ (or because the school believes that a person has done or is going to do a protected act. Protected characteristics: Making a claim or complain of discrimination; Helping someone else to claim by giving evidence or information. You must not treat a pupil less favourably because of something their parents or sibling has done in relation to the making of a complaint or discrimination.
Disability Discrimination within the Equalirt Act 2010
Section 6 defines what a disability is. A person (P) has a disability if P has a physical or mental impairment, and the impairment has a substantial and long-term adverse effect on P’s ability to carry out normal day-to-day activities. Examples include cancer, diabetes, multiple sclerosis and heart conditions; hearing or sight impairments or a significant mobility difficulty; and mental health conditions or learning difficulties.
Section 15 defines the type of discrimination that can arise from disability. A person (A) discriminates against a disabled person (B): if A treats B unfavourably because of something arising as a consequence of B’s disability, and A cannot show that the treatment is a proportionate means of achieving a legitimate aim. The discrimination does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability. It is never unlawful to treat disabled pupils more favourable than non disabled pupils.
Finally, Section 20 requires a duty to make reasonable adjustments. The first requirement is a requirement, where a provision, criterion or practice of A’s puts a disabled person at a substantial disadvantage concerning 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. The third requirement is a 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.
Education
An educational institution, whether that is a university, college, or school, discriminates against you if they treat you unfavourably because of something connected with their disability and cannot justify such treatment, such as the inability to walk unaided. It is different from direct discrimination because the motive for the treatment does not matter. It also differs from indirect discrimination in that there is no need to show other disabled pupils have been discriminated against.
However if your education institution did not know the pupil was disabled and could not have reasonably known either then the unfavourable treatment would not amount to unlawful discrimination arising from disability. Finally, it is unlawful for an education provider to treat a disabled pupil or student less favourably for a reason related to the disability or to fail to make reasonable adjustments to prevent the disabled pupil/student from being placed at a substantial disadvantage.
