Which providers does this cover:
- Universities and higher education institutions.
- Further education colleges, and institutions, including sixth form colleges.
What is unlawful Discrimination?
Further or Higher Education institutions must not do the following:
- Treat you worse than someone else because of your disability (Direct Discrimination),
- Fails to make reasonable adjustment for you if you are being put at a substantial disadvantage in comparison to others,
- Subject you to Discrimination arising from disability,
- Indirect Discrimination by applying a provision criterion or practice to you
- Harass you because of your disability.
- Victimize you by subjecting you to a detriment because you have done a protected act (i.e. brought proceedings, raised a complaint or supported someone under the Equality Act 2010)
Direct discrimination occurs when you are treated less favourably than your institution treats (or would treat) another student because of a protected characteristic.
For example: A university refuses to admit a student because of their disability.
This would be unlawful direct race discrimination.
Direct discrimination generally cannot be justified. There are some exceptions to this:
- Where the Equality Act makes a specific exception, such as in relation to allowing single-sex institutions to only admit students of one gender.
- It is not unlawful direct discrimination to treat a disabled student more favourably than a non-disabled student because of their disability.
For example: A university decides that in order to encourage more disabled people to become artists it will reserve a certain percentage of places on its Art degree course for disabled applicants. This would not be unlawful direct discrimination.
For example: A college offers a bursary for disabled students only. This would not be unlawful direct discrimination.
The duty to make reasonable adjustments
If you are a disabled student, the duty requires further and higher education institutions to take positive steps to ensure that you and disabled students generally can fully participate in the education and other benefits, facilities and services provided for students. This includes taking advance action where it is reasonable to anticipate disabled students’ requirements so that it is then not difficult or too late to make adjustments when disabled students ask for them. This duty is owed to you, whether you are an existing student, an applicant or, in limited circumstances, if you are a former student. As explained below, this duty may require institutions to change the way they normally work, alter physical features of their buildings such as the siting of lecture rooms or access to them, and provide equipment such as assistive software or human assistance such as a scribe or British Sign Language (BSL) interpreter.
What is the reasonable adjustments duty?
Further and higher education institutions are required to take reasonable steps to:
- avoid substantial disadvantage where a provision, criterion or practice puts you at a substantial disadvantage in comparison with non-disabled students
- avoid substantial disadvantage where a physical feature of the building or premises puts you at a substantial disadvantage in comparison with non-disabled students; this includes removing the physical feature in question, altering it or providing a reasonable means of avoiding it
- provide an auxiliary aid where, without one, you would be put at a substantial disadvantage in comparison with non-disabled students.
Where the reasonable adjustment you need concerns the provision of information, the steps it is reasonable to take include ensuring the information is provided in an accessible format.
An institution cannot justify a failure to make a reasonable adjustment; where the duty arises, the issue is whether or not the adjustment is ‘reasonable’.
What is meant by ‘reasonable’ steps?
What is reasonable for an institution to do will vary according to a number of factors including the effectiveness of the adjustment, the cost and practicability of the adjustment, the type of education, benefit, facility or service being provided and the relationship between the student and the institution. There is often more than one reasonable adjustment that could be made and the institution does not have to make the one requested by you if another one could also overcome the substantial disadvantage.
You do not have to suggest adjustments but if you do, your institution should consider whether these suggestions would help to overcome the disadvantage and whether they are reasonable. It is good practice for your institution to work with you in determining what reasonable adjustments can be made.
What is a substantial disadvantage?
The Act defines a ‘substantial disadvantage’ as one that is more than minor or trivial. The level of disadvantage created by a lack of reasonable adjustments is measured in comparison with what the position would be if you did not have a disability.
A further or higher education institution will need to take into account a number of factors when considering what a substantial disadvantage might be, such as:
- the time and effort that you might need to expend
- the inconvenience, indignity or discomfort you might suffer
- the loss of opportunity or the diminished progress you might make in comparison with your peers who are not disabled.
For example: A college has several sites and students are required to move between sites to attend consecutive classes. This is likely to place a student with mobility difficulties at a significant disadvantage compared to their peers who have no mobility difficulties as the student will find it hard to move between sites and will arrive late for classes as a result. Such a disadvantage is more than minor or trivial and is likely to satisfy the definition of a substantial disadvantage.
The duty to change a provision, criterion or practice
These terms are not defined but in general they relate to how the education and other benefits, facilities and services are provided and cover all of a further or higher education institution’s arrangements, policies, procedures and activities.
Where a provision, criterion or practice places you at a substantial disadvantage in accessing education and any benefit, facility or service, the institution must take such steps as it is reasonable to take in all the circumstances to ensure the provision, criterion or practice no longer has such an effect.
For example: A college has a strict policy that states no drugs are allowed on the premises. A student with a heart condition carries medication related to her condition. The college allows her to bring her medication with her to college. This is likely to be a reasonable adjustment to the college drug policy.
A provision, criterion or practice does not include what is known as a ‘competence standard’ that is defined as an academic, medical or other standard for the purpose of determining whether or not a person has a particular level of competence or ability. There is no duty to make reasonable adjustments in relation to the application of a competence standard. However, the duty does apply to the process of demonstrating that a person meets the competence standard.
For example: The mark required to pass an exam would be a competence standard, so would not be subject to the duty to make reasonable adjustments. However, it might be a reasonable adjustment to give a disabled person a longer time in which to complete an exam if their disability causes them to write more slowly, or to provide a student with a visual impairment with his written exam in enlarged text. These would be examples of reasonable adjustments to help them demonstrate that they can meet the competence standard.
The duty related to physical features
Physical features of a building or premises include:
- any feature arising from the design or construction of a building
- any feature on the premises, including any approach to, exit from, or access to a building
- any fixtures, fittings, furnishings, furniture, equipment or other moveable property in or on the premises, and
- any other physical element or quality.
All these features are covered by the duty, whether the feature in question is temporary or permanent.
The duty to provide auxiliary aids
A further or higher education institution must take such steps as it is reasonable for it to take to provide auxiliary aids to avoid the substantial disadvantage you may experience because of a disability. An auxiliary aid includes an auxiliary service and covers anything which provides additional support or assistance to you. This could range from the provision of a particular piece of equipment (which would not become your property) to extra staff assistance. It includes making information available in an accessible format.
For example: A university ensures Deaf students have access to BSL interpreters and palantypists. This is an example of an auxiliary service which addresses the substantial disadvantage faced by Deaf students.
If you are on a higher education course you may be able to obtain the Disabled Students’ Allowance, which helps provide for the cost of additional study support or equipment you require as a result of the effect of your disability. If a piece of equipment is purchased using this allowance, it will remain your property after you have finished your course. If you are on a further education course your institution may be able to provide you with study support and equipment through Additional Learning Support funding.
Cost of providing reasonable adjustments
A further or higher education institution is not allowed to charge you for the cost of making any reasonable adjustments for you.
Harassment related to a protected characteristic
Harassment occurs when a further or higher education institution engages in unwanted behaviour which is related to a relevant protected characteristic and which has the purpose or effect of:
- violating your dignity, or
- creating an intimidating, hostile, degrading, humiliating or offensive environment for you.
The word ‘unwanted’ means ‘unwelcome’ or ‘uninvited’. It is not necessary for you to say that you object to the behaviour for it to be unwanted.
For example: A college tutor repeatedly makes racist remarks about Gypsies and Travellers stating that they are unhygienic and dishonest and shouldn’t be allowed to be students at the college. A student from a Traveller background is in the class and finds the tutor’s behaviour degrading and offensive. This could be harassment related to the protected characteristic of race.
Whether or not the unwanted behaviour constitutes unlawful harassment depends on the purpose or effect of the behaviour. It does not matter what the intention behind the behaviour is if it creates the circumstances described above. In determining if the behaviour has had such an effect it is necessary to take into account not only the perception of the student but also the other circumstances of the case including the relationship between the alleged harasser and the student and whether it is reasonable (judged objectively) for the behaviour to have that effect. This means that it is unlikely to be unlawful harassment if another reasonable person would not feel that their dignity had been violated or that the behaviour had created an intimidating, hostile, degrading, humiliating or offensive environment for the student.
In this context ‘related to’ has a broad meaning and includes situations where you do not have the protected characteristic yourself, provided there is a connection between the behaviour and a protected characteristic.
This would also include situations where you are associated with someone who has a protected characteristic or are wrongly perceived as having a particular protected characteristic.
Victimisation is defined in the Act as:
Treating someone unfavourably (to their disadvantage or detriment) because they have done a ‘protected act’ (or because you believe that a person has done or is going to do a protected act).
A ‘protected act’ is:
- making a claim or complaint of discrimination (under the Equality Act)
- helping someone else to make a claim by giving evidence or information
- making an allegation that someone has breached the Act
- doing anything else in connection with the Act.
If a further or higher education institution treats you less favourably because you have taken such action then this will be unlawful victimisation. There must be a link between what you did and how the institution treats you.
The less favourable treatment does not need to be linked to a protected characteristic.
For example: A finance officer refuses to process a student’s living cost grant application because she has supported another student’s race discrimination claim. This would amount to victimisation.
2.3.1 Who is not protected?
If you give false information or evidence in bad faith (that is, you know that it is false) or make an allegation that is false and given in bad faith you would not be protected against victimisation.
For example: A student with a grudge against his tutor knowingly gives false evidence in another student’s discrimination claim against the university. He is subsequently excluded from the course for supporting the claim. This treatment could not amount to victimisation because his evidence was untrue and given in bad faith.
It doesn’t matter whether the original complaint/claim is upheld as long as it was not made in bad faith.