Human Resources

The Equality Act 2010 provides protection from discrimination. It consolidates and replaces previous equality laws and confirms and extends certain types of unlawful discriminatory behaviour based on aspects of a person’s identity known as ‘protected characteristics’.

The Act introduced also a single Public Sector Equality Duty (sometimes referred to as the ‘general duty’) which has applied to all schools (except those in the private sector) since 5 April 2011. The general duty replaced the previous three sets of duties to promote disability, race and gender. The duty applies to all protected characteristics and requires schools to take steps to eliminate unlawful discrimination and to actively promote equality.

Specific equality duties were also introduced by the Equality Act 2010 (Specific Duties) Regulations 2011 to supplement the general duty and help public authorities including schools to fulfil their equality obligations. The specific duties are now contained in the Equality Act 2010 (Specific Duties and Public Authorities) Regulations 2017.

The Act applies to all schools and academies irrespective of how they are funded or managed and applies to school as employers, as education providers and service providers. It applies to the way in which schools treat pupils (including prospective and former pupils), job applicants members of staff (and sometimes former members of staff), parents/carers and the wider school community. The Act covers all aspects of school life in relation to pupils and members of staff.

The school’s ‘responsible body' is liable for breaches of the Equality Act. For maintained schools this will be the local authority or the governing body, depending upon how responsibilities are split; for an independent school, academy or free school, this will be the proprietor.

The responsible body will be liable for the actions of the school’s employees and agents unless it can show that it has taken all reasonable steps to prevent discrimination harassment or victimisation from taking place. Individuals working at school must also not discriminate against pupils or against their colleagues. If they do breach the Act, they may be held personally responsible and liable for their own actions.

The protected characteristics to which the Act applies are as follows: Age, Disability, Gender reassignment, Race (including colour, ethnic or national origins and nationality), Religion or belief, Sex, Sexual orientation, Marriage and civil partnership, Pregnancy and maternity.

The protected characteristics of age and marriage and civil partnership apply to staff but not pupils. The Act extended protection to pupils in relation to the protected characteristics of pregnancy and maternity and gender reassignment.

Under the Act there are now four main types of unlawful behaviour but there are six for people with a disability. These are: Direct discrimination (now including by association and by perception), Indirect discrimination, Victimisation, Harassment and discrimination arising from a disability

Failure to make reasonable adjustments.

The Act makes it unlawful for the Responsible Body of a school to discriminate against, harass or victimise a pupil or potential pupil in relation to admissions, in the way it provides education for pupils, in the way it provides access to any benefit, facility or service to pupils, or by excluding a pupil or subjecting them to any other detriment. The Act extended the victimisation provisions so it is now unlawful to victimise a pupil for anything done in relation to the Act by their parent or sibling.

Members of staff working in a school do not have to be working under a contract of employment to be protected against discrimination under the Act. The Act covers job applicants, employees (and sometimes former employees), agency or contract workers, casual workers, and trainees. Depending upon who has discriminated against them, an agency worker may take action against the agency, the school’s responsible body and members of staff personally.

Section 15 of the Act extended the protection from discrimination available for people with a disability. Discrimination occurs under this provision if a disabled pupil or member of staff is treated unfavourably because of something arising in consequence of their disability and the treatment cannot be justified as a proportionate means of achieving a legitimate aim. This is an important development for schools and there have already been a number of high profile cases involving schools in courts and Tribunals.

The duty to make reasonable adjustments which existed under the Disability Discrimination Act (DDA) is replicated in the Act but it is no longer possible for schools to defend a failure to make a reasonable adjustment; an adjustment is either reasonable or it is not. The duty is triggered where a disabled person is placed at a substantial disadvantage in comparison to others who are not disabled and requires schools to take such steps as is reasonable to avoid the disadvantage.

There are three parts to the duty: changing the way things are done; making changes to physical features; and providing auxiliary aids. The Act extended the duty in relation to auxiliary aids so that since 1 September 2012, schools have been required to provide auxiliary aids and services to disabled pupils where these are not being supplied through SEN statements or EHC Plans or from other sources.

The part of the duty to make reasonable adjustments relating to physical features does not apply to disabled pupils; instead schools have a duty to improve the physical environment of the school as part of their obligations to carry out accessibility planning.

The duties for schools under the Act around accessibility planning are the same as applied under the DDA. Schools are required to publish an accessibility plan which demonstrates how the school plans to:

• Increase the extent to which disabled pupils can participate in the curriculum
• Improve the physical environment of schools to enable disabled pupils to take better advantage of education, benefits, facilities and services
• Improve the availability of accessible information to disabled pupils
• An accessibility plan may be a freestanding document or it can be part of another document, for example, the School Development Plan

Schools should ensure that anyone with responsibility for recruitment of staff is aware of the new provisions in section 60 of the Act which make it generally unlawful for an employer to enquire about the disability or health of a job applicant until a job offer has been made. Questions about previous sickness absence count as questions that relate to health or disability.

Schools should also be aware of the new positive action provisions introduced by section 158 of the Act which enable schools to take proportionate steps to help particular groups of staff or pupils to overcome disadvantage connected to protected characteristics. Positive action is permissible provided the steps a school proposes are not excessive and provided they are based on need or disadvantage or low participation. Positive action is not compulsory but it may be a useful way of helping schools to comply with their general equality duty.

There are some exceptions that apply across the Act generally (e.g. an exception for sex discrimination in relation to competitive sports), and there are some general and specific exceptions which apply to schools. General school exceptions apply in relation to the content of the curriculum and to collective worship. Specific school exceptions apply to certain types of school e.g. single sex schools and faith schools in relation to pupil admissions and staff recruitment.

The general duty has three main elements which schools are required to have ‘due regard’ to when making decisions and developing policies. When carrying out their functions, schools must have due regard to the need to:

Eliminate unlawful discrimination, harassment, victimisation and other conduct that is prohibited by the Act.

Advance equality of opportunity between people who share a relevant protected characteristic and those who do not share it.

Foster good relations across all protected characteristics between people who share a protected characteristic and those who do not share it.

Having due regard to the need to advance equality of opportunity is defined in Act as having due regard to the need to remove or minimise disadvantages; take steps to meet different needs and encourage participation when it is disproportionately low. Having due regard to the need to foster good relations is defined in the Act as having due regard to the need to tackle prejudice and promote understanding.

The Equality and Human Rights Commission (EHRC) states in its Guidance for Schools on the Public Sector Equality Duty, having due regard means: When making a decision or taking an action a school must assess whether it may have implications for people with particular protected characteristics It should consider equality implications before and at the time that it develops a policy and takes decisions; not as an afterthought and it needs to keep them under review.

It should consciously consider each aspect of the duty (having due regard to the need to eliminate discrimination is not the same thing as having due regard to the need to advance equality of opportunity).

It should assess the risk and extent of any adverse impact that might result from a policy or decision and the ways in which the risk may be eliminated before the adoption of a proposed policy

The equality duty has to be integrated into the carrying out of a schools functions. The analysis necessary to comply with the duty should be carried out rigorously and with an open mind – it is not a question of just ticking boxes Schools need to do this themselves and cannot delegate responsibility for carrying out the duty to anyone else. The steps they have taken to meet the duty must be recorded.

In order to comply with their specific duties schools were required by 6 April 2012 to: Publish information to demonstrate how they are complying with their general duty

Prepare and publish equality objectives.

Schools are required to update published equality information at least annually and to publish one or more measurable and specific equality objectives at least once every 4 years.

Under the 2017 Regulations, which came into force on 31 March 2017, schools have until 30 March 2018 to publish equality objectives with a requirement to renew them at least every four years from that date. If schools have already published equality objectives within the four year period ending with 30 March 2018 they are not required to publish further objectives for a further four years from the date the last objectives were published.

It is up to schools to decide how and where they publish information - so long as the information is accessible to anyone who wants to see it. The simplest approach is probably to set up an equalities page on the school website where all the information relevant to equality is present or where links to it are available.

The Department for Education’s non statutory advice for schools states that a school “should set as many objectives as it believes are appropriate to its size and circumstances; the objectives should fit the school’s needs and be achievable”. Schools are therefore free to choose equality objectives that best suit their individual circumstances and contribute to the welfare of their pupils and the school community. Good objectives will be specific and measurable not vague and flimsy. The development of objectives should be one of the most significant ways in which a school can demonstrate it is meeting its obligations under the general duty.

Whilst the Act does not say it is mandatory for schools to have an equality policy, EHRC Guidance (volume 7) “Good equality practice for employers; equality policies, equality training and monitoring” stresses that having a policy will demonstrate a commitment to equality and that promoting and publishing an equality policy will help to show reasonable steps are being taken to avoid discrimination. The Guidance states “implementing good equality practices guided by an equality policy should greatly reduce the likelihood of acting unlawfully.” Having a policy will assist schools in relation to compliance with the first element of the general duty; it is recommended therefore that schools should have an up to date Equality Policy covering all the protected characteristics and which refers to the school’s current equality objectives.

The EHRC Guidance states that equality training can be an important part of showing that an employer is preventing discrimination, harassment and victimisation from occurring and it provides advice in relation to what equality training might include. The Department for Education’s non statutory advice for schools also states “evidence of staff training on the Equality Act would be appropriate…” in relation to schools showing compliance with the first element of the general duty.

Given that schools will be liable for the actions of employees and agents unless it can be shown that they have taken all reasonable steps to prevent discrimination, harassment or victimisation from taking place, and given staff may be personally liable if they breach the Act, it is advisable that all staff and governors in schools should receive equality training. This will ensure that they are clear about their duties and responsibilities under the Act and that they understand how equality law applies to them.

1. What is the Apprenticeship Levy? In order to help meet its target of 3 million apprentices by 2020, the government is introducing an Apprenticeship Levy (i.e. a tax) on all large employers (defined as those employers with a pay-bill of over £3m). This includes schools and academies.

2. When was the Apprenticeship Levy being introduced? With effect from 1st April 2017 with the first payments due in May 2017.

3. How much is the Apprenticeship Levy? 0.5% of the employer’s pay-bill. Every employer will receive an allowance of £15k to offset against the amount they owe.

4. Does the Apprenticeship Levy apply to all schools and academies? The local authority remains the employer of staff in maintained schools (community and voluntary controlled). Those schools will be counted along with the LA workforce pay-bill. Voluntary aided schools and academies will only be affected if their pay bill is greater than £3m.

5. What happens to Voluntary aided schools using the LA payroll service? If the school is part to a pooled PAYE scheme – i.e. utilising a single PAYE reference to report to HMRC they should arrange to split from the pooled PAYE scheme and set up their own PAYE scheme prior to April 2017. Further guidance is available from the payroll provider.

6. How does the Apprenticeship Levy apply to Multi Academy Trusts? Schools that are part of a MAT will be subject to the levy and the public sector target if the MAT has in excess of 250 employees. Only one £15k allowance will be allowed to be offset against the MAT.

MATs in scope for the levy and the target will also need to calculate the number of apprentices that they are expected to take on.

7. How will the Apprenticeship Levy be calculated and applied? The expectation is that the levy will be calculated and collected via the PAYE system.

8. What happens if a maintained school does not use the LA payroll service? The school’s payroll provider will liaise with the local authority to establish an acceptable process. HMRC and the DfE are expected to publish further guidance on this subject.

9. Where does the money go? The contributions go into an HMRC digital apprenticeship account.

10. What can we use the money in the digital apprenticeship account for? This account will be used to pay for apprenticeship training and assessment.

11. Does the government contribute to the digital apprenticeship account? The government will top up by 10%, so for every £1 in the digital account the government will add 10 pence.

12. What can the funds in the digital apprenticeship account be spent on? Training and assessment costs for apprentices.

13. Can the digital apprenticeship account funds be used to pay salary costs for apprentices? No the Apprenticeship Levy cannot be used for salary costs.

14. Can the Apprenticeship Levy be used for existing apprenticeships? No. Apprentices accepted on an apprenticeship programme prior to April 2017 will be funded under the current terms and conditions.

15. Does an apprentice have to be a new employee? No. An apprenticeship may be set up for an existing employee.

16. School has a new SENDCo and is unsure the best way to ensure that all pupils are receiving what they need. We can help to work alongside the SENDCo to ensure that all children are correctly assessed and help set up Provision Maps to monitor all children’s progress.

17. We have applied for a statutory assessment for a child but have not heard anything. What should we do? Once you have applied for a statutory assessment they will contact you within 6 weeks to say whether they plan to assess the child or not.

18. How can we ensure that we are recording parent voice for the parents of our pupils with SEND? It is a requirements that parents are consulted on the SEND policy. One way to ensure this is to invite parents to a coffee morning. Have key questions written on flip chart paper around the room and aske parents t contribute by either telling you ( and you scribe), writing directly onto the paper or adding their contributions via post it(may parents find writing directly onto the flip chart intimidating).