CHAPTER ONE – INTRODUCTION: THE EQUALITY ACT 2010 IN THE SCHOOL CONTEXT
The legal framework
Primary legislation
The Equality Act 2010 (“EqA”) came into force on 1 October 2010, consolidating and strengthening a patchwork of pre-existing anti-discrimination laws. It provides a single legal framework to promote equality and to protect individuals from discrimination in a variety of social contexts. It applies in England and Wales, and (save for some limited exceptions[1]), in Scotland.
The EqA is a long statute, consisting of over 200 sections along with 28 Schedules. The overarching structure of the EqA, where relevant, can be summarised as follows.
Part 2 of the EqA sets out the general legal framework, including the grounds upon which an individual may experience discrimination (the “protected characteristics”), and the types of discriminatory behaviour that an individual may experience (the “prohibited conduct”).
There are nine protected characteristics, seven of which are relevant to schools: disability; gender reassignment; pregnancy and maternity; race; religion or belief; sex; and sexual orientation. There are six types of prohibited conduct relevant to disability: direct discrimination[2]; indirect discrimination[3]; harassment[4]; victimisation[5]; discrimination arising from disability[6]; and failure to make reasonable adjustments[7] (the latter two types of prohibited conduct being unique to disability).
Parts 3 to 7 deal with specific circumstances in which such prohibited conduct is unlawful, including services and public functions; premises; work; education; and associations.
Part 8 deals with circumstances where prohibited conduct occurs in less straightforward contexts, such as where the relationship giving rise to liability has ended[8], where the prohibited conduct has been committed by an agent or employee[9], or where a third party has been instructed, caused or induced to commit prohibited conduct[10].
Part 9 sets out the various enforcement mechanisms available to claimants, which include the civil courts and the employment tribunal, depending on the context of the alleged discrimination. In the education context, jurisdiction is primarily conferred on the County Court[11], save in respect of claims brought by or on behalf of a disabled pupil or prospective pupil against the responsible body of a school[12] (which claims are brought instead in the First-tier Tribunal (“FTT”) where the school is located in England).
Part 10 deals with the enforceability of contractual terms which are discriminatory, or which purport to exclude or limit liability under the EqA.
Part 11 deals with the advancement of equality, by setting out the public sector equality duty (“PSED”), and the circumstances in which positive action is permitted, in the recruitment and promotion context[13] and more generally[14].
Part 12 sets out specific rules with respect to disabled persons and transport.
Part 14 deals with general exceptions to the EqA.
Finally, a number of technical provisions, including general interpretation[15] and an index of defined expressions[16], can be found in Part 16.
Secondary legislation and guidance
The EqA is supplemented by secondary legislation. Most relevant for the purposes of this book is the Equality Act 2010 (Disability) Regulations 2010, which sets out supplementary provisions with respect to the definition of disability.
The EqA is also supplemented by guidance issued from a number of sources, including the Equality and Human Rights Commission (“EHRC”) and relevant government departments, including the Equalities Office and the Department for Education (“DfE”).
The Equalities Office[17] has issued statutory guidance in the form of the Disability: Equality Act 2010 – Guidance on matters to be taken into account in determining questions relating to the definition of disability (published in May 2011 and updated in March 2013) (“the Disability Guidance”). Whilst a helpful aid to the application of the EqA in certain cases, the Disability Guidance must be applied in line with the usual legal principles: it must not be “construed as statute”, and must “always give way to the statutory provisions” where the two differ[18].
The EHRC has published a number of statutory codes of practice[19], in the fields of employment, equal pay, and services, public functions and associations. However, the EHRC has not published a statutory code of practice in the schools context[20]. Instead, it has published non-statutory guidance[21] in the form of Technical Guidance for Schools in England (July 2014) (“the Technical Guidance”). As the Technical Guidance is non-statutory, there is no statutory requirement for the FTT to take it into account. However, the Technical Guidance suggests that “it may be used as evidence in legal proceedings”, and in practice, it is often referred to in the context of an FTT case.
Finally, the DfE has published non-statutory guidance entitled The Equality Act 2010 and Schools: Departmental Advice for school Leaders, School Staff, Governing Bodies and Local Authorities (May 2014) (“the DfE Guidance”).
Case law
Decisions of the FTT are not generally reported[22]. The case law directly considering disability discrimination in schools is largely generated by the Upper Tribunal (“UT”). Such appeals are relatively infrequent.
Much of the case law providing clarification and interpretation of the EqA arises in the context of employment claims under Part 5 EqA. The legal principles established in case law considering other spheres of activity can be of relevance to schools claims, subject to the need to consider the often fact-sensitive nature of such claims. Further, given that the EqA re-stated and strengthened the predecessor equalities legislation (including the Disability Discrimination Act 1995), case law decided under this predecessor legislation is likely to be of relevance.
Application in the school context: Part 6, Chapter 1 EqA
Schools have obligations under the EqA in a number of contexts, including where they provide services to the public (Part 3), and in their roles as employers (Part 5). This book is concerned with schools’ duties to its pupils and prospective pupils (Part 6).
Part 6, Chapter 1 EqA provides, in summary, that the responsible body of a school must not discriminate against[23] or victimise[24] a prospective pupil:
- in the arrangements it makes for deciding who is offered admission as a pupil;
- as to the terms on which it offers to admit the person as a pupil;
- by not admitting the person as a pupil;
and must not harass a person who has applied for admission as a pupil[25].
Once a pupil is enrolled in a school, the responsible body of that school must not discriminate against[26] or victimise[27] a pupil:
- in the way it provides education for the pupil;
- in the way it affords the pupil access to a benefit, facility or service;
- by not providing education for the pupil;
- by not affording the pupil access to a benefit, facility or service;
- by excluding the pupil from the school;
- by subjecting the pupil to any other detriment;
and must not harass a pupil[28].
Further, the responsible body of a school is under a duty to make reasonable adjustments[29], in the context of its provisions, criteria and practices, and its provision of auxiliary aids and services (but not in relation to physical features of its premises).
These obligations are widely drawn, and include a school’s policies and procedures (such as those dealing with uniform, behaviour and discipline, and attendance), its curriculum delivery, break and lunchtimes, and homework, its trips, extra-curricular activities and after-school clubs, and its tests and assessments.
There are a number of important exceptions to the EqA in the schools context. For example:
- Excluded protected characteristics: the protected characteristics of age and marriage and civil partnership do not apply to pupils in schools[30]. Further, the protected characteristics of gender reassignment, religion or belief, and sexual orientation do not apply for the purpose of the prohibition on harassment in schools[31] (having been so excluded due to concerns about the risk of a “chilling effect” on Article 9 and 10 ECHR rights[32])[33].
- Content of the curriculum: the duties do not apply to “anything done in relation to the content of the curriculum”[34] (as opposed to the way in which the curriculum is taught[35]). This exemption has been described by the High Court as being “cast in broad terms”, with the intention of enabling a school “to teach controversial material without being accused of contravening” the EqA[36].
- Collective worship: the duties do not apply to “anything done in connection with acts of worship or other religious observance organised by or on behalf of a school (whether or not forming part of the curriculum)”[37].
Exceptions also apply to certain types of school (for example, in relation to single sex schools[38], schools with charitable status[39], or schools with a religious character[40]) and to admissions on the basis of a permitted form of selection[41].
Who owes duties in the school context?
All schools in England have obligations under the EqA, regardless of their management or funding arrangements. A “school” means an educational institution outside of the further or higher education sector, and which is an institution for providing primary and / or secondary education (whether or not it also provides further education)[42]. This definition includes:
- Local authority-maintained schools (including mainstream schools, maintained nursery schools[43], maintained special schools, and pupil referral units[44]);
- Academies (including Free Schools, Academy Special Schools, and alternative provision Academies, but excluding 16 to 19 Academies[45]);
- Independent schools (including non-maintained special schools).
Pursuant to section 85 EqA, duties are imposed on the “responsible body” of the school (often abbreviated to the “RB”), and the responsible body should be named as the respondent to any claim.
For schools maintained by a local authority, the responsible body is either the local authority or the governing body[46]. The identity of the appropriate responsible body will depend on which body was responsible for the allegedly discriminatory act. For example, the Technical Guidance suggests that a local authority which is the admissions authority for a school is likely to be the responsible body in respect of a claim in connection with admissions, whereas the governing body is likely to be the responsible body in respect of a claim in connection with a decision to exclude a pupil[47].
For other types of school, the responsible body is the proprietor[48], defined as the “person or body of persons responsible for the management of the school”[49]. The identity of a school’s proprietor can generally be found on the DfE’s online register, GIAS (“Get Information about Schools”)[50].
Liability of responsible bodies for actions of employees and agents
Pursuant to section 109 EqA, a responsible body is vicariously liable for the actions of its employees acting in the course of their employment, and its agents acting with the responsible body’s authority, whether or not such actions were taken with that responsible body’s knowledge or approval[51].
Where a claim is brought against a responsible body on the basis of the actions of an employee, it is a defence to show that the responsible body took all reasonable steps to prevent the employee from carrying out the discriminatory act, or from doing anything of that description[52]. This defence is rarely used, and is available only where the responsible body can meet the high threshold of proving that all reasonable steps have been taken[53].
Employees are not personally liable for claims of disability discrimination in schools; as such, individual employees cannot be named as respondents to such claims[54].
Liability of responsible bodies for actions of other pupils
A responsible body will not generally be liable under the EqA for the actions or behaviours of one pupil towards another, except to the extent that it is discriminatory in its response to such actions or behaviours[55].
Transfer of liability upon academisation
Where a claim is brought against the governing body of a maintained school which subsequently converts to become an academy, the liabilities of the former governing body are transferred to the relevant local authority. The local authority should therefore be substituted as the respondent, and the responsible body of the academy may be added as second respondent with its consent, or may simply cooperate with the respondent local authority in the conduct of the case[56].
To whom are duties owed in the school context?
Responsible bodies owe duties to prospective and current pupils. “Pupil” has the meaning given in section 3 of the Education Act 1996; that is, a child or young person for whom education is being provided at a school, other than:
- a person who has attained the age of 19 for whom further education is being provided, or
- a person for whom part-time education suitable to the requirements of persons of any age over compulsory school age is being provided.
Pursuant to section 108 EqA, responsible bodies can in certain circumstances be liable for discrimination against former pupils, if the discrimination arises out of and is closely connected to the former pupil–school relationship. Examples of circumstances in which such liability may arise include the provision of a reference, and the provision of access to alumni communication or activities[57]. However, it is important to note that disability discrimination claims by former pupils under section 108 EqA should be brought in the County Court and not in the FTT[58].
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[1] Section 217(2) EqA
[2] Section 13 EqA
[3] Section 19 EqA
[4] Section 26 EqA
[5] Section 27 EqA
[6] Section 15 EqA
[7] Section 21 EqA
[8] Section 108 EqA 2010
[9] Sections 109 – 110 EqA
[10] Section 111 EqA
[11] Section 114(1)(c) EqA
[12] Section 116 EqA; Schedule 17 EqA
[13] Section 159 EqA
[14] Section 158 EqA
[15] Section 212 EqA
[16] Section 214 EqA
[17] Pursuant to the power in section 6(5) EqA
[18] Elliott v Dorset County Council [2021] WL 1321820, paragraph 31
[19] Pursuant to the power in section 14 Equality Act 2006
[20] Whilst the EHRC had intended to publish a statutory Code of Practice for Schools, the government at the time decided not to lay any further draft codes before Parliament for approval (a prerequisite to the publication of a statutory Code of Practice pursuant to section 14(7) of the Equality Act 2006).
[21] Pursuant to the power in section 13 Equality Act 2006
[22] Although Parents of C v Stanbridge Earls School [2012] WLUK 136 is an unusual example of an FTT case which was reported.
[23] Section 85(1) EqA
[24] Section 85(4) EqA
[25] Section 85(3)(b) EqA
[26] Section 85(2) EqA
[27] Section 85(5) EqA
[28] Section 85(3)(a) EqA
[29] Section 85(6) EqA
[30] Section 84 EqA
[31] Section 85(10) EqA
[32] Joint Committee on Human Rights, Legislative Scrutiny: Equality Bill, Twenty-sixth Report of Session 2008 – 2009, paragraph 118
[33] Such conduct may nonetheless amount to a detriment for the purposes of a claim of direct discrimination, pursuant to section 212(5) EqA
[34] Section 89(2) EqA, emphasis added
[35] Which is covered by section 85(2)(a) EqA, per the explanatory notes to the EqA, paragraph 302
[36] Birmingham City Council v Afsar and others [2019] EWHC 3217 (QB), paragraphs 50 – 51
[37] Paragraph 6, Part 2, Schedule 11, EqA
[38] Part 1, Schedule 11, EqA
[39] Section 193 EqA
[40] Part 2, Schedule 11, EqA
[41] Paragraph 8, Part 3, Schedule 11 EqA
[42] Section 4 Education Act 1996
[43] NB an independent institution that provides only early years provision and is not a maintained nursery school does not fall within the definition of a school: section 4(1A) Education Act 1996.
[44] Section 19(2B) Education Act 1996
[45] Section 4(1B) – (1C) Education Act 1996
[46] Section 85(9)(a) EqA
[47] Technical Guidance, paragraph 1.7
[48] Section 85(9)(b) EqA
[49] Section 89 EqA; section 579(1) of the Education Act 1996
[50] https://get-information-schools.service.gov.uk
[51] Section 109(1) – (3) EqA
[52] Section 109(4) EqA
[53] Allay (UK) v Gehlen [2021] 2 WLUK 57, paragraph 42
[54] Section 110(7) EqA
[55] DfE Guidance, paragraph 1.7
[56] ML v Tonbridge Grammar School [2012] UKUT 283 (AAC)
[57] The Equality Act 2010 and Schools, Departmental Advice for School Leaders, School Staff, Governing Bodies and Local Authorities, May 2014, paragraph 1.8; see also the explanatory notes to the EqA, paragraph 354
[58] Section 114(1)(e) EqA