2010 Equality Act: Layman’s Guide to Championing SEN

When learning about Special Educational Needs (SEN), one of the first significant pieces of legislation you’ll encounter is the Equality Act 2010. This act is key in ensuring fairness and equal opportunities for all, including children with SEN. But what does it mean in practice?

This guide aims to provide a clear and straightforward overview of the Equality Act 2010 and its relevance to SEN. We’ll summarize the key points and highlight how they impact your child’s education. While this summary is a helpful starting point, it’s always a good idea to refer to the original document for more details and consult professionals for tailored advice.

By breaking down the essentials of this legislation, we hope to help parents, carers, and educators understand how the Equality Act supports children with SEN. Let’s dive into the basics and explore how this law can help create a more inclusive educational environment.

A Bird’s Eye View of the Equality Act 2010

Before we dive in, it’s important to note that this is a lay review, a simplified peek into the vast ocean of guidelines designed to foster understanding and spark conversations. Always consult the Equality Act 2010, the source, for an in-depth understanding and to seek expert guidance.

The Heart of the Matter

At its core, the Equality Act 2010 is a beacon of hope. It is a legislative giant that stands tall to protect individuals from discrimination, fostering a society that embraces diversity and promotes equality. It consolidates various previous legislations, aiming to simplify the law while extending protection against discrimination in several areas.

Protected Characteristics

The Act safeguards individuals based on several protected characteristics including, but not limited to, race, disability, and gender. It introduces a duty for public sectors, including schools, to eliminate discrimination and foster good relations across all characteristics.

A Friend to Special Education Needs

For those championing SEN, this Act is indeed a powerful ally. It mandates schools to make reasonable adjustments, including the provision of auxiliary aids and services, to alleviate disadvantages faced by disabled pupils, fostering an environment where every child can shine.

Empowering Schools and Local Authorities

The Act guides schools and outlines the roles of local authorities in education. It ensures a harmonized approach to fostering equality in everything from school admissions to curriculum development and transport.

Source Document

Equality Act 2010 and schools – Departmental advice for school leaders, school staff, governing bodies, and local authorities – May 2014

Introduction and Overview of the Equality Act 2010

The Equality Act 2010 consolidates previous legislation, including the Race Relations Act, Disability Discrimination Act, and Sex Discrimination Act, aiming to simplify the law and extend protection against discrimination in several areas. The document serves as non-statutory advice from the Department for Education to help schools understand and fulfil their duties under the Act.

Key Points of the Equality Act 2010

• Protected Characteristics: The Act protects individuals from discrimination based on various characteristics, including sex, race, disability, religion or belief, and sexual orientation.
• Scope: The Act applies to all maintained and independent schools, including academies and special schools in England, Wales, and Scotland.
• Responsibilities of Schools: Schools are prohibited from discriminating against, harassing, or victimizing pupils about admissions, education provision, access to benefits, facilities, or services, and other detriments.
• Extended Protections: The Act extends protection to pupils who are pregnant, have recently given birth, or are undergoing gender reassignment.
• Positive Action: Schools can target measures to alleviate disadvantages experienced by pupils with protected characteristics as long as these measures are proportionate to achieving the relevant aim.
• Victimisation: It is unlawful to victimise a child for actions related to the Act by their parent or sibling.
• Auxiliary Aids: The Act requires schools to provide auxiliary aids and services to disabled pupils, a duty that came into force on 1 September 2012.
• Public Sector Equality Duty: The Act introduces a public sector equality duty that combines previous duties to eliminate discrimination and advance equality of opportunity. It aims to be less bureaucratic and more outcome-focused.

Unlawful Behaviors Defined by the Act

• Direct Discrimination: Treating someone less favourably because of a protected characteristic.
• Association and Perception: It is unlawful to discriminate based on the protected characteristics of someone the individual is associated with or perceived to have, even if the perception is incorrect.

Unlawful Behaviors

• Direct Discrimination: Treating someone less favourably due to a protected characteristic.
• Indirect Discrimination: Applying a general provision, criterion, or practice that disadvantages individuals with a certain characteristic.
• Harassment: Unwanted conduct related to a protected characteristic that violates a person’s dignity or creates an intimidating, hostile, degrading, humiliating, or offensive environment.
• Victimisation: Treating someone less favourably because they have done a “protected act” under the Act, such as making a discrimination allegation.

Special Provisions for Disability

• The law protects disabled individuals, allowing schools to treat disabled pupils more favourably to ensure equality.
• The Act is closely linked with provisions for children with special educational needs.

Definition of Parents

• The term “parent” encompasses birth parents, adoptive, step, and foster parents, and others who have parental responsibility or care for a pupil.

General Exceptions

Single-Sex Schools

• Can refuse admission to pupils of the opposite sex but may admit a small number on an exceptional basis or for specific courses or classes.
• Must not discriminate against opposite-sex pupils in other forms.

Schools with a Religious Character (Faith Schools)

• They can prioritize admissions based on religious affiliation but cannot refuse admission to pupils of different or no religion if there are unfilled places.
• They can provide education and access to benefits, facilities, or services in a manner compatible with their religious ethos. Still, they cannot discriminate against pupils who do not belong to the school’s religion or are based on other protected characteristics.

Curriculum

• The curriculum content is not subject to discrimination law, allowing schools to include various issues, ideas, and materials in their syllabus without fear of legal challenge.
• Schools must ensure curriculum delivery does not discriminate against individual pupils.

Curriculum Delivery

• Schools must ensure the curriculum is delivered without discrimination, avoiding derogatory generalisations and unequal treatment in class discussions and subject choices.

Acts of Worship

• Schools are allowed to have acts of worship or other forms of collective religious observance, and it is not considered discriminatory to not provide equivalent acts for different faiths.

Uniforms

• Schools should be careful that uniform policies do not discriminate based on various protected characteristics.
• Schools should accommodate the needs of different cultures, races, and religions reasonably without compromising school policies.

Bullying

• Schools must address all forms of prejudice-motivated bullying firmly and equally.

Special Issues for Some Protected Characteristics

Gender Reassignment

• New protection under the Equality Act prohibits schools from treating pupils less favourably due to gender reassignment.
• Schools must address issues related to gender reassignment proactively and sensitively.

Race

• Schools must avoid practices that result in unfair, less favourable treatment of pupils based on race.
• Segregating pupils by race is always considered direct discrimination.

Religion or Belief

• The Act protects any religion or belief, including a lack of religion or belief, as long as it has a clear structure and belief system.
• Schools cannot discriminate against someone based on their adherence or non-adherence to a particular religion or belief.

Religion or Belief

• Discrimination can occur within the same religion or belief group, and it is unlawful to discriminate based on the perceived depth of someone’s belief.
• Teachers cannot discriminate based on personal religious views on various topics, including homosexuality and gender roles.

Sex/Gender

• Schools must avoid practices that result in unfair treatment based on gender.
• Single-sex classes are allowed if they do not unfairly advantage or disadvantage one gender.
• Single-sex sports are permitted where physical differences may put one gender at a disadvantage, but equal opportunities must be provided.

Pregnancy and Maternity

• Discrimination against pupils due to pregnancy, maternity, or breastfeeding is unlawful.
• Schools must consider pregnancy and maternity when fulfilling their equality duties.

Sexual Orientation and Marriage and Civil Partnership

• Schools must ensure fair treatment for all pupils, regardless of sexual orientation or the sexual orientation of their parents.
• Teaching about marriage must be sensitive, respectful, and balanced, including the teaching about same-sex marriage.
• Schools with a religious character must balance their religious ethos with the duty to prevent discrimination when discussing same-sex relationships.

Disability

• The Act allows and often requires more favourable treatment for disabled individuals to ensure equality.
• The definition of disability is less restrictive, not listing day-to-day activities that a disabled person cannot carry out.
• Unjustifiable failure to make reasonable adjustments and direct discrimination against disabled individuals is unlawful.
• Since September 2012, schools and local authorities have had a duty to provide auxiliary aids and services as reasonable adjustments beyond those supplied through Special Educational Needs (SEN) statements or other sources.

Definition of Disability

• It is defined as a physical or mental impairment with a substantial and long-term adverse effect on normal day-to-day activities.
• Certain medical conditions like HIV, multiple sclerosis, and cancer are considered disabilities, irrespective of their effect.

Unlawful Behaviors Regarding Disabled Pupils

• Direct Discrimination: Treating a disabled pupil less favourably because of their disability is unlawful.
• Indirect Discrimination: Applying a provision that adversely affects disabled pupils more than others is unlawful unless justified by a legitimate aim achieved proportionately.
• Discrimination Arising from Disability: Discriminating against a pupil because of something resulting from their disability is unlawful but can be justified.
• Harassment: Harassing a pupil because of their disability is unlawful.

Reasonable Adjustments and Auxiliary Aids

• Schools must make reasonable adjustments to alleviate disadvantages faced by disabled pupils, including providing auxiliary aids and services.
• The duty to provide auxiliary aids and services extends to local authorities who maintain schools.
• The provision of auxiliary aids and services considers the reasonableness of the adjustment, which may depend on the school’s resources and the individual case circumstances.
• Schools should anticipate potential adjustments for disabled pupils, not just those attending school.

Accessibility for Disabled Pupils

• Schools and local authorities must carry out accessibility planning to enhance the participation of disabled pupils in the curriculum, their physical environment, and their access to information.
• OFSTED inspections may review a school’s accessibility plan.
• Local authorities are responsible for preparing accessibility strategies for the schools they maintain based on the same principles as school access plans.

Introduction to PSED (Public Sector Equality Duty)

• Introduced in April 2011, the PSED applies to public bodies, including maintained schools and academies, to foster equality regarding race, disability, sex, age, religion or belief, sexual orientation, pregnancy and maternity, and gender reassignment.
• The duty has three main elements:
  1. Eliminate discrimination and other prohibited conduct by the Act.
  2. Advance equality of opportunity between individuals with and without protected characteristics.
  3. Foster good relations across all characteristics, promoting understanding and tolerance.

Implementation of PSED

• Schools must integrate PSED into their functions, considering equality implications seriously and rigorously during policy development and decision-making.
• Schools cannot delegate the responsibility of fulfilling the duty and must maintain a proactive approach to equality considerations.
• It is good practice for schools to document equality considerations, although formal equality analysis is not mandatory.

Specific Duties Under PSED

• Schools must publish information demonstrating compliance with PSED and establish and publish equality objectives.
• The specific duties aim to be flexible, light-touch, and transparent, avoiding bureaucratic processes.
• Schools must update the published information annually and renew the objectives at least every four years.
• The requirements are adaptable to the school’s size and resources, and the publication of employee-related data is optional for schools with fewer than 150 employees.
• Schools are encouraged to utilize existing data sources, such as RAISE online, to fulfil their duties without additional burdens.
• The published information can include various documents, such as policies and meeting minutes, to illustrate the school’s commitment to promoting equality.

Addressing the Three Elements of PSED

1. Eliminating Discrimination
   • Schools should showcase their awareness and determination to comply with the Act’s non-discrimination provisions through policies, staff training, and monitoring of equality issues.
2. Advancing Equality of Opportunity
   • Schools should identify and address inequalities through data analysis, take responsive actions to support disadvantaged groups, and encourage participation in school activities.
3. Fostering Good Relations
   • This involves promoting understanding and tolerance through inclusive policies and practices that encourage participation from all groups.

Fostering Good Relations

• Schools can demonstrate their commitment to fostering good relations through curriculum elements that promote tolerance and understanding of various religions or cultures, anti-bullying policies, community involvement, and initiatives that address tensions between different pupil groups.
• Schools are encouraged to engage with affected individuals and groups with exceptional knowledge to tackle equality issues effectively.

Publishing Information and Setting Equality Objectives

• Schools decide the format for publishing equality information, possibly through an equalities page on their website.
• Equality objectives should be specific, measurable, and tailored to the school’s circumstances to improve the school experience for different pupils.
• Future publications should evidence the steps taken and progress towards meeting the set equality objectives.

Local Authorities and Education Functions

Establishment and Closure of Schools

• Local authorities (LAs) are not bound by age, sex, religion, or belief discrimination provisions when establishing or closing schools, allowing them to respond appropriately to local demands.
• LAs must ensure sufficient schools provide appropriate education to meet demand.

School Curriculum

• LAs are not restricted by age, religion, or belief discrimination provisions regarding the school curriculum, allowing them to support schools in various subjects without facing discrimination claims.

School Admissions

• LAs play a crucial role in school admissions, and the Act does not extend age, religion, or belief discrimination provisions to this role. However, it permits age-based admissions and priority to children of a school’s religion in oversubscribed faith schools.

School Transport

• LAs are responsible for school transport, and the Act does not apply age and religion or belief discrimination provisions to this function, allowing flexibility in arranging transport based on various factors without being unlawful.
• LAs must ensure transport policies do not discriminate unlawfully in other respects and comply with statutory guidance.

Acts of Worship

• LAs can be involved in or arrange acts of worship in schools without being restricted by the Act’s religion or belief discrimination provisions.

Reasonable Adjustments for Disabled Pupils

• LAs share the duty with schools to provide reasonable adjustments for disabled pupils, including accessibility strategies and auxiliary aids and services.

How the Act is Enforced

Court Proceedings for Discrimination Claims

• Discrimination claims, except for disability cases, are brought to the county court within 6 months of the related act, with possible extensions deemed just and equitable.
• Courts can award remedies, including damages, in case of contravention.

Tribunal Proceedings for Disability Discrimination Claims

• Disability discrimination claims are heard by specialist tribunals, with parents making claims on behalf of the pupils.
• Tribunals can order remedies to remove or reduce the adverse effects on the pupil, excluding compensation payments.

The Questions Procedure

• Before taking a formal case to the County Court, complainants can ask questions about their treatment using unique forms developed for this purpose.
• This procedure aims to establish facts and potentially resolve issues at the local level, reducing the number of cases going to court or tribunals.
• Questions and answers can be used as evidence in any subsequent court or tribunal case.
• Courts or tribunals can draw adverse inferences from a lack of response within 8 weeks or vague or evasive answers, making it in the school’s best interest to avoid such responses.

Education-Specific Employment Provisions

General Provisions

• Schools, as employers, must not discriminate against potential or existing employees regarding job offers, terms, benefits, facilities, services, training opportunities, promotion, or dismissal.
• Harassment and victimization related to protected characteristics are unlawful.

Reasonable Adjustments for Employees

• Schools must make reasonable adjustments, including providing auxiliary aids and services, to alleviate disadvantages caused by disability for employees or potential employees.

Health and Disability Enquiries

• Schools cannot inquire about an applicant’s health until a job offer is made, except for questions related to the intrinsic function of the work.
• Schools should review their practices to ensure compliance with the Health Standards Regulations and Section 60 of the Equality Act.

Employment Exceptions for Schools with a Religious Character

• Schools with a religious character are exempt from the religion or belief provisions of the Equality Act regarding employment.
• Different rules apply to voluntary-controlled and foundation schools compared to voluntary-aided, independent academies and free schools with a religious character. The latter have more autonomy in employment matters, including applying religious criteria in recruitment, remuneration, promotion, and dismissal.

Further Information

• The EHRC and Codes of Practice for Employers provide detailed guidance on the Act’s employment provisions.