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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:
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:
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:
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.
There are significant overlaps between fulfilling the equality duty and meeting the requirements of the Ofsted framework. Equality and diversity are specified factors that must be taken into account by Ofsted inspectors and are relevant to all of the key judgements which contribute to a school’s overall effectiveness. Ofsted is also bound by the public sector equality duty in relation to its inspection of schools.
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:
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:
In order to comply with their specific duties schools were required by 6 April 2012 to:
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.
Schools should publish information that demonstrates how they have met the three elements of the general duty and which is relevant to people who share a relevant protected characteristic who are affected by their policies and practices. For most schools, the information published will be pupil data as schools are exempt from publishing data about staff unless they employ 150 or more employees. If staff data is published schools should ensure they are mindful of their obligations under data protection laws.
The Department for Education’s non statutory advice for schools ‘The Equality Act 2010 and schools’ gives some useful and practical suggestions about the sorts of information which schools could consider publishing relevant to each element of the general duty.
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.
For further information and support around schools’ duties and obligations under the Equality Act 2010 and the Equality Act 2010 (Specific Duties and Public Authorities) Regulations 2017, fill in the form below or call Rachel Foster on 0844 967 1111.