Disability and Equality
I am the Disability Awareness Week Manager for the Disability Awareness Week happening at the University of the West of England from the 14th March to the 18th March 2011. One of the purposes of the Disability Awareness Week is to introduce the Disability Scheme following the Equality Act 2010. It seems to me appropriate therefore to tell readers of my blog about Disability and Equality Law. Plus I'm doing a talk at our Disability Conference about Disability under the Equality Act 2010 so it provides me with the time to gain a bit more understand of the Equality Act approach to Disability.
What is the Equality Act 2010?
This act is a new piece of legislation that effective brings together over 116 different pieces of legislation into one single act with the 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 previous legislative instrument on Disability Discrimination Law.
What are the changes for people with disabilities?
The Equality Act cover 9 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 lead 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 a number of 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. Example refusing to admits a pupil/student because of their race, for example because they are roma.
Indirect discrimination occurs when you apply a provision, criterion or practice in the same way for all students or a particular group, such a postgraduate students, but this has the effect of putting students sharing a protected characteristic within the general student group at a particular disadvantage. It can make different forms, such as denial of an opportunity or choice, deterrence, rejection or exclusion. 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 has the effect of excluding Sikh boys whose religion requires them to wear a turban. This would be indirect discrimination based on religion and belief as it is unlikely that the school would be able 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.
Occurs when you engage in unwanted behaviour which is related to a relevant protected characteristic and which had the purpose or effect of: violating a pupil's dignity or creating an intimidating, hostile, degrading, huminilating or offensive environment for the pupil. Doesn't apply to gender reassignment, sexual orientation, religion or belief in school.
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 make a 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 defined 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 unfavorably because of something arising in 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 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 avoid the disadvantage. The second requirement is a requirement, where a physical feature puts a disabled person 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 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.
An education institution, whether that is a university, college, or school, discriminated 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. 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. If your agent or employee knows of the disability, you will not usually be able to claim that you do not know of the 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 being placed at a substantial disadvantage.
About the Author
I am a legal writer covering advice on topics of law including Disability Discrimination Law. For more legal advice and information, and for free legal resources I suggest you visit discrimination-disability.co.uk/
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