Which of the following would not be considered discrimination under the equality act 2010?

Under the Equality Act 2010, it is unlawful for any education provider, including a private or independent provider, to discriminate between pupils on grounds of disability, race, sex, gender reassignment, pregnancy and maternity, religion or belief, or sex. Discrimination on these grounds [known as “protected characteristics”] is unlawful in relation to prospective pupils [admissions arrangements], pupils at the school including absent or temporarily excluded pupils, and former pupils who have a continuing relationship with the school.

Prohibition of discrimination

The Act defines discrimination in four ways:

1. direct discrimination occurs when a pupil is treated less favourably than another pupil because of a protected characteristic. It is always unlawful, with certain exceptions, e.g. with regard to single-sex schools. The law also prohibits

• direct discrimination by association, when a pupil is treated less favourably because of his/her association with another person who has a protected characteristic [but this does not apply to pregnancy and maternity, see below].
• direct discrimination based on perception, when a pupil is treated less favourably because of being mistakenly seen as having a protected characteristic
• discrimination because of pregnancy and maternity, where a female pupil is treated less favourably because she is or has been pregnant or has given birth in the last 26 weeks or is breastfeeding a baby under 26 weeks old [if the baby is older than 26 weeks, unfavourable treatment would be classed as direct sex discrimination]

2. indirect discrimination occurs when treating all pupils in the same way results in putting pupils with a protected characteristic at a disadvantage. It depends on the following conditions being met:

• a provision, criterion or practice is applied equally to all relevant pupils, including those with a protected characteristic, and
• the provision, criterion or practice puts pupils sharing a protected characteristic at a disadvantage compared to other relevant pupils, and
• the provision, criterion, practice or rule puts the particular pupil concerned at a disadvantage, and
• the school cannot demonstrate that the provision, criteria or practice is justified as a “proportionate means of achieving a legitimate aim”.

3. discrimination arising from disability occurs when a disabled pupil is treated unfavourably because of something related to his/her disability [as distinct from being because of the disability itself, which would be direct discrimination as above] and such treatment cannot be justified. The following conditions must be met:

• the disabled pupil is treated in a way which puts him/her at a disadvantage
• the treatment is connected with the pupil’s disability
• the treatment cannot be justified as “a proportionate means of achieving a legitimate aim”
.

4. failure to make reasonable adjustments for disabled people. There has been a duty on responsible bodies of schools to make reasonable adjustments for disabled pupils and prospective pupils since 1995. The new Act extends the duty so that a school must also provide auxiliary aids and services, but as at November 2010 this element is yet to come into force.

The Act states that the responsible body of a school must not discriminate against a person in its admission arrangements, in the provision of education, in exclusions or by subjecting the pupil to any other detriment.

Harassment

The Act prohibits harassment of three types:

1.harassment related to a relevant protected characteristic is unwanted behaviour related to a protected characteristic [for schools, disability, race and sex] and which has the purpose or effect of violating a pupil’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the pupil

2. sexual harassment is unwanted behaviour which is of a sexual nature and which has the purpose or effect of violating a pupil’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for the pupil

3. less favourable treatment of a pupil because they submit to or reject sexual harassment or harassment related to sex.

The Act states that a school must not harass a pupil or a person who has applied for admission.

Victimisation

The Act prohibits victimisation, defined as treating a pupil badly because s/he [or his/her parent or sibling] has done a “protected act” [or because the school believes 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 Act.
• giving evidence or information to support another person’s claim under the Act.
• alleging that the school or someone else has breached the Act.
• doing anything else in connection with the Act.

The Act states that a school must not victimise a person in its admission arrangements, the provision of education, in exclusions or by subjecting the pupil to any other detriment.

Further information on the implications of the Equality Act 2010 for schools can be found in What equality law means for you as an education provider: schools, published by the Equality and Human Rights Commission, together with up to date information on the Commission’s website. See also the full text of the Act and the explanatory notes.

Page last updated: Sunday 28 October 2018

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